Lowest living cost state

I

THE history of the Supreme Court would record fewer explosive periods if, from the beginning, there had been a more continuous awareness of the rôle of the Court in the dynamic process of American society. Lawyers, with rare exceptions, have failed to lay bare that the law of the Supreme Court is enmeshed in the country’s history; historians no less have seemed to miss the fact that the country’s history is enmeshed in the law of the Supreme Court. Normally historians, much more than lawyers, guide the general understanding of our institutions. But historians have, in the main, allowed only the most spectacular decisions — the Dred Scott controversy or the Legal Tender Cases — to intrude upon the flow of national development through their voluminous pages. The vital share of the Court in the interplay of the country’s political and economic forces has largely escaped their attention. Not unnaturally the Court has been outside the permanent focus of the historian’s eye. For the momentum of the Court’s influence has been achieved undramatically and imperceptibly, like the gradual growth of a coral reef, as the cumulative product of hundreds of cases, individually unexciting and seemingly even unimportant, but in their total effect powerfully telling in the pulls and pressures of society.

From the very beginning the Court has had business which in form was an ordinary lawsuit but which affected the nation as much as action either by the Congress or by the President. The raw material of modern government is business. Taxation, utility regulation, agricultural control, labor relations, housing, banking and finance, control of the security market, — all our major domestic issues, — are phases of a single central problem: namely, the interplay of economic enterprise and government. These are the issues which for more than a generation have dominated the calendar of the Court. For the special function of the Supreme Court in our scheme of things is to mediate between the individual and government, and to mark the boundaries between state and national action. The Court is the final authority in adjusting the relationships of the individual to the separate states, of the individual to the United States, of the fortyeight states to one another, and of the states to the Union.

The Supreme Court exercises this tremendous authority as interpreter of clauses of the Constitution. But the clauses which are interpreted differ drastically in their nature and history, and therefore present sharply different problems for interpretation. Broadly speaking, there are two types of constitutional clauses. First are specific provisions designed to guard against the recurrence of well-defined historic grievances or to impose some specific limitation of power either upon the states or upon the central government in the distribution of authority under our federalism. These provisions are so definite in their terms and in their history that they canalize interpretation within narrow limits. For that reason they are seldom brought into question and even more rarely excite conflicting views about their meaning.

In the second category are the broad, undefined clauses of the Constitution setting out standards of fair dealing, as well as doctrines of government not expressed in the Constitution but derived from assumptions regarding its purposes. These clauses and implicit doctrines of the Constitution bring very different problems to the Court from those just indicated. Words like ‘liberty ’ and ‘property,’ phrases like ‘regulate Commerce . . . among the several States,’ ‘due process of law,’ ‘equal protection of the laws,’ doctrines like those of the separation of powers and the nondelegability of the legislative function, are the foundation for judicial action upon the whole appalling domain of social and economic fact. But phrases like ‘due process of law’ are, as a great judge once expressed it, of ‘convenient vagueness.’ Their ambiguity is such that the Court is compelled to put meaning into the Constitution, not to take it out.

We speak of the Court as though it were an abstraction. To be sure the Court is an institution, but individuals, with all their diversities of endowment, experience, and outlook, determine its actions. The history of the Supreme Court is not the history of an abstraction, but the analysis of individuals acting as a Court who make decisions and lay down doctrines, and of other individuals, their successors, who refine, modify, and sometimes even overrule the decisions of their predecessors, reinterpreting and transmuting their doctrines. In law also, men make a difference. It would deny all meaning to history to believe that the course of events would have been the same if Thomas Jefferson had had the naming of Spencer Roane to the place to which John Adams called John Marshall, or if Roscoe Conkling rather than Morrison R. Waite had headed the Court before which came the Granger legislation. The evolution of finance capital in the United States, and therefore of American history after the Reconstruction period, would hardly have been the same if the views of men like Mr. Justice Miller and Mr. Justice Harlan had dominated the decisions of the Court from the Civil War to Theodore Roosevelt’s administration. There is no inevitability in history except as men make it.

II

The United States got under way one hundred and fifty years ago, and only seventy-seven men have shaped its destiny, in so far as law has shaped it. To understand what manner of men they were who have sat on the Supreme bench is vital for an understanding of the Court and its work. Yet how meagre is our insight into all but a very few! A lawyer’s life before he becomes a judge, like that of an actor, is largely writ in water unless he has had a rich political career. And legal opinions are not conducive to biographical revelation. On the whole, we have a pitifully inadequate basis for understanding the psychological and cultural influences which may be the roots of judicial opinions. The obvious map to the minds of the Justices — the opinions of the Court — is deceptive precisely because they are the opinions of the Court. They are symphonies, not solos. Inferences from opinions to the distinctive characteristics of individual Justices are treacherous, except in so far as a man’s genius breaks through a collective judgment, or his vivid life before he went on the bench serves as commentary, or as he expresses individual views in dissent or through personal writings. Not to speak of the present Court, Mr. Justice Holmes possessed these qualities of personal genius perhaps in richer measure than any member in the Court’s history.

The Chief Justice of Massachusetts became Mr. Justice Holmes of the Supreme Court on December 4, 1902, and resigned on January 12, 1932. He was thus a member of the Court for a fifth of its entire active history, and participated in more than a third of its adjudications. More important than these items of duration or volume is the historic significance of the period. Longmaturing social forces which the Civil War released or intensified found powerful political expression just about the time that Mr. Justice Holmes went to Washington. Time did not abate these conflicts. And so it came about that the Court, during his whole thirty years, was sucked into political controversies more continuous and of more immediate popular concern than at any other time in its history.

To the discerning, the burst of capitalistic activity following the victory of the North early revealed that reconciliation of unfettered individual enterprise with social well-being would be the chief issue of politics. A letter by Mr. Justice Miller, written in 1878, which has recently come to light, is a straw showing the way the wind was blowing. Miller, an appointee of Lincoln, and probably the most powerful member of his Court, kept a close watch on events, in Washington as well as from the vantage point of the agricultural Middle West, where he traveled much on circuit: —

I have met with but few things of a character affecting the public good of the whole country that have shaken my faith in human nature as much as the united, vigorous, and selfish effort of the capitalists, — the class of men who as a distinct class are but recently known in this country — I mean those who live solely by interest and dividends. Prior to the late war they were not numerous. They had no interest separate from the balance of the community, because they could lend their money safely and at high rates of interest. But one of the effects of the war was greatly to reduce the rate of interest by reason of the great increase in the quantity of the circulating medium. Another was by the creation of a national funded debt, exempt from taxation, to provide a means for the investment of surplus capital. This resource for investment was quadrupled by the bonds issued by the States, by municipal corporations, and by railroad companies. The result has been the gradual formation of a new kind of wealth in this country, the income of which is the coupons of interest and stock dividends, and of a class whose only interest or stake in the country is the ownership of these bonds and stocks. They engage in no commerce, no trade, no manufacture, no agriculture. They produce nothing.

Mr. Justice Miller was here describing early manifestations of the impact of technological science upon society. Finance capital was in its early stages. Its evolution since Mr. Justice Miller wrote has been analyzed in Veblen’s writings and in Brandeis’s Other People’s Money; the pungent details are recorded in the massive volumes of the Pujo and the Pecora investigating committees. In brief, technological advances led to large-scale industry, large-scale industries flowered into mergers and monopolies, thereby producing in considerable measure a subordination of industry to finance. On the social side came the shift from a dominantly agricultural to an urbanized society. Big business vigorously stimulated trade-unionism. Since modern politics is largely economics, these conflicting forces soon found political expression. After several abortive attempts, the various agrarian and progressive movements, in combination with organized labor and other less defined groups, three times won the Presidency. For the ‘square deal’ of Theodore Roosevelt, the ‘new freedom’ of Woodrow Wilson, and the ‘new deal’ of Franklin D. Roosevelt have a common genealogy. Disregarding for the moment detailed or minor differences, the three eras which these slogans summarize derived from efforts to reconcile modern economic forces with the demands of a popular democracy.

The result of the process of economic concentration in the half century since the Miller letter is luminously conveyed by some Treasury figures. I quote from Solicitor General Robert H. Jackson in his recent report on the Sherman Law: —

In 1932, according to the statistics of the Bureau of Internal Revenue, 53 per cent of all corporate owned assets in this country was held by 618 corporations, which constitutes only 0.2 of 1 per cent of the number of corporations reporting. Five per cent of the corporations owned 85 per cent of all corporate owned wealth in 1932. More than 50 per cent of all the net income enjoyed by corporations in 1932 went to 232 corporations, while of the country’s manufacturing corporations 1.2 per cent of the total number accounted for 63 per cent of the aggregate net profits. In 1934 the only group of corporations that earned an aggregate net profit was the group whose assets exceeded $50,000,000. Thus, the process of concentration was continuing.

There was likewise a high degree of concentration in the ownership of these corporations. Nineteen-twenty-nine was a banner year for stock ownership and in that year the 3.28 per cent of the population who filed individual tax returns accounted for the receipt of more than 83 per cent of all dividends paid to individuals. And 78 per cent of those dividends reported were received by 0.3 of 1 per cent of our population.

The effect of this centralization is reflected in the distribution of national income. In 1933 the Bureau of Internal Revenue statistics show that there were only 1,747,740 taxable individual incomes in the United States and nearly one third of all the property reported as passing by death was found in less than 4 per cent of the estates. Brookings Institution’s studies of 1929 show that about 6,000,000 families, or 21 per cent of all families, had family incomes of less than $1000 annually, and that 36,000 families in the high income brackets received as much of our national income in that year as 11,000,000 families with the lowest income.

Instead of using dry figures, Mr. Bernard Baruch, who is uniquely equipped to describe it, has portrayed the present economic scene by a few swift strokes: — In the industrial East, at least, individual initiative had begun to merge into corporate collectivism around the end of the nineteenth century, attaining its fullest effect in the decade following the World War. It has long since replaced the older capitalism as the dominant force in our economic life.

Naturally, there is only one means of controlling this collectivist growth in corporate enterprise. Government regulation must be extended to a direct proportionate degree.

This is a sine qua non which business must accept.

Short of the immediate issues of today, Mr. Justice Holmes’s period of service on the Court covered the years of most intense interaction between government and business. Barring the tariff and the National Bank Act, there were only two important measures of economic legislation on the Federal statute books when Mr. Justice Holmes came to the Court, and these two, the Interstate Commerce Act of 1887 and the Sherman Law of 1890, had only somnolent vitality. Nor had state legislation, after the flurry of the Granger days, proved itself an effective device for social control over economic circumstance. Theodore Roosevelt’s presidency marked the change. Under him the Federal Government for the first time embarked upon a positive programme of social welfare. Through use of the taxing power and by regulatory legislation, not only were abuses to be remedied but benefits to be achieved for the common man. A vast field of hitherto free enterprise was brought under governmental supervision. Regardless of the political complexion of successive administrations, the area of national oversight of business was extended. From 1903 to 1932, an invigorated Interstate Commerce Commission, the Federal Trade Commission, the Federal Reserve Board, the Farm Loan Board, the Tariff Commission, the Federal Power Commission, the Railroad Labor Board, followed each other in quick succession.

This vigorous legislative movement was partly a reflex of energetic state action and partly stimulated states to action. Wisconsin, under the elder La Follette, and New York, under Charles E. Hughes, took the lead in effective state regulation of utilities. In the decade between 1910 and 1920 all but half a dozen states enacted workmen’s compensation laws. Local antitrust laws, shorter-hours acts, minimum-wage laws, blue-sky laws, banking laws, conservation enactments, illustrate only some of the topics on which laws came from the forty-eight states. Such were the problems that were presented to Mr. Justice Holmes for adjudication.

III

What equipment did Mr. Justice Holmes bring to the Court for dealing with these problems? What qualities did Theodore Roosevelt look for in appointing a Supreme Court Justice at this time? Thanks to Senator Lodge, the elder, to whom President Roosevelt unburdened his mind, we know both the hopes and the doubts that he felt about Mr. Justice Holmes’s qualifications for the Supreme Bench at that particular time: —

First of all, I wish to go over the reasons why I am in his favor. . . . The labor decisions which have been criticized by some of the big railroad men and other members of large corporations constitute to my mind a strong point in Judge Holmes’s favor. The ablest lawyers and the greatest judges are men whose past has naturally brought them into close relationship with the wealthiest and most powerful clients, and I am glad when I can find a judge who has been able to preserve his aloofness of mind so as to keep his broad humanity of feeling and his sympathy for the class from which he has not drawn his clients. I think it eminently desirable that our Supreme Court should show in unmistakable fashion their entire sympathy with all proper effort to secure the most favorable possible consideration for the men who most need that consideration.

Now a word as to the other side. . . . In the ordinary and low sense which we attach to the words ‘partisan’ and ‘politician,’ a judge of the Supreme Court should be neither. But in the higher sense, in the proper sense, he is not in my judgment fitted for the position unless he is a party man, a constructive statesman, constantly keeping in mind his adherence to the principles and policies under which this nation has been built up and in accordance with which it must go on; and keeping in mind also his relations with his fellow statesmen who in other branches of the government are striving in coöperation with him to advance the ends of government.

. . . The majority of the present Court who have, although without satisfactory unanimity, upheld the policies of President McKinley and the Republican Party in Congress, have rendered a great service to mankind and to this nation. The minority — a minority so large as to lack but one vote of being a majority — have stood for such reactionary folly as would have hampered well-nigh hopelessly this people in doing efficient and honorable work for the national welfare. . . .

Now I should like to know that Judge Holmes was in entire sympathy with our views, that is with your views and mine . . . before I would feel justified in appointing him. Judge Gray has been one of the most valuable members of the Court. I should hold myself as guilty of an irreparable wrong to the nation if I should put in his place any man who was not absolutely sane and sound on the great national policies for which we stand in public life.

In taking account of the general philosophy of a prospective member of the Supreme Court towards major public issues likely to come before it, Theodore Roosevelt was merely following the example of other Presidents, notably Lincoln in appointing Chase as Chief Justice. The psychological assumptions made by Theodore Roosevelt and Lincoln that the past in which a man is inured may have a powerful effect upon his future decisions are supported by weighty judicial experience.

When judges decide issues that touch the nerve centre of economic and social conflict, the danger, in De Tocqueville’s phrase, of confounding the familiar with the necessary is especially hazardous. The matter was put with candor by Lord Justice Scrutton, a great English judge:—

The habits you are trained in, the people with whom you mix, lead to your having a certain class of ideas of such a nature that, when you have to deal with other ideas, you do not give as sound and accurate judgment as you would wish. This is one of the great difficulties at present with Labor. Labor says: ‘Where are your impartial Judges? They all move in the same circle as the employers, and they are all educated and nursed in the same ideas as the employers. How can a labor man or a trade-unionist get impartial justice?’ It is very difficult sometimes to be sure that you have put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your class.

Unlike the great men on the Court before him, Mr. Justice Holmes had been singularly outside the current of public affairs or of interest in them. He was essentially the philosopher who turned to law. Ultimate issues of the destiny of man, not the evanescent events of the day, preoccupied his mind. That he did not read newspapers revealed neither affectation nor a sense of superiority; it mirrored his worldly innocence. When Senator Lodge tried to induce him to run for Governor, with the bait that it would inevitably lead to a seat in the United States Senate, Mr. Justice Holmes blandly replied: ‘But I don’t give a damn about being a Senator.’ And yet, though he did not bring to the Court the experience of great affairs, not even Marshall exceeded him in judicial statesmanship. Other great judges have been guided by the wisdom distilled from an active life; Mr. Justice Holmes was led by the divination of the philosopher and the imagination of the poet.

Because he had an organic philosophy, he was not distracted by the infinite diversity of detail in the appearance of the same central issues. No one realized better than he that, while principles gain significance through application, concrete instances are inert except when galvanized into life by a general principle. And so it is perhaps more true of him than of any other judge in the history of the Court that the host of public controversies in which he participated was subdued to reason by relatively few guiding considerations. This was true whether he was called upon to strike a balance between the claims of property and its obligations, or between the rights of individuals and their duties, or between the limits of state action and the authority of the Federal Government.

What is the rôle of a judge in making these adjustments between society and the individual, between the states and the nation? The conception which a judge has of his own function, and the fastidiousness with which he follows it, will in large measure determine the most delicate controversies before him. Justices of the Court are not architects of policy. They can nullify the policy of others; they are incapable of fashioning their own solutions for social problems. The use which a judge makes of this power of negation is largely determined by two psychological considerations. It depends first on the judge’s philosophy, conscious or implicit, regarding the nature of society; that is, on his theory of the clash of interests. This, in turn, will influence his conception of the place of the judge in the American constitutional system.

Mr. Justice Holmes’s view of the play of forces in society hardly differed from that of Madison in his classic statement in the Federalist: —

Those who hold, and those who are without property, have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.

Thirty years before he went on the Supreme Court, Mr. Justice Holmes expressed this view in his own way: —

This tacit assumption of the solidarity of the interests of society is very common, but seems to us to be false. … In the last resort a man rightly prefers his own interest to that of his neighbors. And this is as true in legislation as in any other form of corporate action. All that can be expected from modern improvements is that legislation should easily and quickly, yet not too quickly, modify itself according to the will of the de facto supreme power in the community, and that the spread of an educated sympathy should reduce the sacrifice of minorities to a minimum. . . . The objection to class legislation is not that it favors a class, but either that it fails to benefit the legislators, or that it is dangerous to them because a competing class has gained in power, or that it transcends the limits of self-preference which are imposed by sympathy. … But it is no sufficient condemnation of legislation that it favors one class at the expense of another; for much or all legislation does that; and none less when the bona fide object is the greatest good of the greatest number. . . . If the welfare of all future ages is to be considered, legislation may as well be abandoned for the present. . . .

The fact is that legislation in this country, as well as elsewhere, is empirical. It is necessarily made a means by which a body, having the power, puts burdens which are disagreeable to them on the shoulders of somebody else.

Mr. Justice Holmes never forgot that the activities of government are continual attempts by peaceful means to adjust these clashes of interest, and he was equally mindful of the fact that the body to whom this task of adjustment is primarily delegated is the legislature. And so he gave complete loyalty in his work as a judge to the major premise of Marshall ‘that it is a Constitution we are expounding.’ He scrupulously treated the Constitution as a broad charter of powers for the internal clashes of society, and did not construe it as though it were a code which prescribed in detail answers for the social problems of all time.

Thus the enduring contribution of Mr. Justice Holmes to American history is his constitutional philosophy. He gave it momentum by the magic with which he expressed it. Great judges are apt to be identified with what lawyers call great cases. Mr. Justice Holmes’s specialty was great utterance. ‘Great cases,’ he himself has said, ‘are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate, overwhelming interest which appeals to the feelings and distorts the judgment.’ He saw the vital in the undramatic; to him, inconspicuous controversies revealed the clash of great social forces. And so the significance of his genius would evaporate in any analysis of his specific decisions. In his case, form and substance were beautifully fused. His conception of the Constitution must become part of the political habits of the country if our constitutional system is to endure; and if we care for our literary treasures the expression of his views must become part of our national culture.

IV

The Constitution is, of course, a legal document, but a legal document of a fundamentally different order from an insurance policy or a lease of timberland. For the Justice, the Constitution was not primarily a text for dialectic, but a means of ordering the life of a progressive people. While its roots were in the past, it was projected for the unknown future.

. . . The provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.

. . . When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.

While the Supreme Court is thus in the exacting realm of government, it is itself freed from the terrible burdens of governing. The Court is the brake on other men’s actions, the judge of other men’s decisions. Responsibility for action rests with legislators. The range of the Court’s authority is thus very limited, but its exercise may vitally affect the nation. No wonder John Marshall spoke of this power of the Court as ‘delicate.’

No man who ever sat on the Court has been more keenly or more consistently sensitive than Mr. Justice Holmes to the dangers and difficulties inherent in the power of judges to review legislation. For it is subtle business to decide, not whether legislation is wise, but whether legislators were reasonable in believing it to be wise. In view of the complexities of modern society and the restricted scope of any man’s experience, tolerance and humility in passing judgment on the worth of the experience and beliefs of others become crucial faculties in the disposition of cases. The successful exercise of such judicial power calls for rare intellectual disinterestedness and penetration, lest limitations in personal experience and imagination operate as limitations of the Constitution. These insights Mr. Justice Holmes applied in hundreds of cases, and expressed in memorable language: —

It is a misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law, and forgets that what seem to him to be first principles are believed by half his fellow men to be wrong. . . . When twenty years ago a vague terror went over the earth and the word ‘socialism ’ began to be heard, I thought and still think that fear was translated into doctrines that had no proper place in the Constitution or the common law.

While the courts must exercise a judgment of their own, it by no means is true that every law is void which may seem to the judges who pass upon it excessive, unsuited to its ostensible end, or based upon conceptions of morality with which they disagree.

Considerable latitude must be allowed for differences of view as well as for possible peculiar conditions which this court can know but imperfectly, if at all. Otherwise a constitution, instead of embodying only relatively fundamental rules of right, as generally understood by all English-speaking communities, would become the partisan of a particular set of ethical or economical opinions, which by no means are held semper ubique et ab omnibus.

While in the ’80s and ’90s our economy was in process of drastic transformation, members of the Supreme Court continued to reflect the economic order in which they grew up. Between the presidencies of Grant and the first Roosevelt, laissez faire was the dominant economic social philosophy, and it was imported into the Constitution. Ephemeral facts were translated into legal absolutes; abstract conceptions concerning ‘liberty of contract’ were erected into constitutional dogmas. Malleable and undefined provisions of the Constitution were applied as barriers against piecemeal efforts of adjustment through legislation to a society permeated by the influence of technology, large-scale industry, progressive urbanization, and the general dependence of the individual on economic forces beyond his control. The due-process clauses were especially the destructive rocks on which this legislation foundered. Judge Learned Hand, one of the most eminent of our judges, has said that the requirement of due process is merely an embodiment of the English sporting idea of fair play. In England, particularly from the time of the Campbell-Bannerman Government, the same causes that induced American legislative attempts led to a continual Parliamentary modification of the system of private enterprise. The scope of this trend in England is revealed by a few telltale figures. The social services established by this legislation have entailed an increase in expenditure from £0.19.2 per capita in 1900 to £8.16.6 in 1934; and about a third of the national income of Great Britain is now spent through public channels.

Yet, as late as 1905, the Supreme Court held it unconstitutional to limit the working hours of bakers to ten, and as recently as 1936 the Court adhered to its ruling that it was beyond the power both of the states and of the nation to assure minimum-wage rates for women workers obviously incapable of economic self-protection. Every variety of legislative manifestation to subject economic power to social responsibility encountered the judicial veto.

The doctrinal process by which the majority reached such results was thus explained by Mr. Justice Holmes in dissenting from his brethren in the minimum-wage case:—

. . . The only objection that can be urged [against a minimum-wage law for women for the District of Columbia] is found within the vague contours of the Fifth Amendment, prohibiting the depriving any person of liberty or property without due process of law. To that I turn.

The earlier decisions upon the same words in the Fourteenth Amendment began within our memory and went no farther than an unpretentious assertion of the liberty to follow the ordinary callings. Later that innocuous generality was expanded into the dogma, Liberty of Contract. Contract is not specially mentioned in the text that we have to construe. It is merely an example of doing what you want to do, embodied in the word ‘liberty.’ But pretty much all law consists in forbidding men to do some things that they want to do, and contract is no more exempt from law than other acts.

For a short time after the bakeshop case the views of Mr. Justice Holmes were in the ascendant. Chief Justice White was heard to attribute to the influence exerted by President Theodore Roosevelt’s messages and speeches no inconsiderable share in the shift of the Court’s emphasis. The fact is that for less than a decade, between 1908 and the World War, the Court did allow legislation to prevail which, in various aspects, regulated enterprise with reference to its social consequences and withdrew phases of industrial relations from the area of illusory individual bargaining.

But those who had assumed a permanent change in the Court’s outlook were soon disappointed. Changes in the Court’s personnel and in the general economic and social climate of the HardingCoolidge era soon reflected themselves in decisions. Until after the 1936 election, the Court was back to the high tide of judicial negation reached in the Lochner case, in 1905. Mr. Justice Holmes’s classic dissent in that case will never lose its relevance: —

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious or, if you like, as tyrannical as this, and which equally with this interfere with the liberty of contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics. . . . Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

This was the great theme of his judicial life — the amplitude of the Constitution as against the narrowness of some of its interpreters. And so, having analyzed with brave clarity the governing elements in the modern economic struggle, he did not shrink from giving his analysis judicial recognition, ‘ One of the eternal conflicts out of which life is made up,’ he wrote, more than forty years ago, ‘is that between the effort of every man to get the most he can for his services, and that of society, disguised under the name of capital, to get his services for the least possible return. Combination on the one side is patent and powerful. Combination on the other is the necessary and desirable counterpart, if the battle is to be carried on in a fair and equal way.’ Mr. Justice Holmes therefore found nothing in the Constitution to prevent legislation which sought to remove some of the more obvious inequalities in the distribution of economic power.

Economists and historians are now largely agreed that the resistance to a natural and responsible trade-unionism has been one of the most disturbing factors in our economy. Had the views of Mr. Justice Holmes prevailed, the Constitution would not have been used as an obstruction to the healthy development of trade-unionism. More than thirty years ago he protested when a majority of the Court invalidated an act of Congress against the ‘yellow dog’ contract which was drawn by Richard Olney, as Attorney General, and sponsored by President Cleveland. The need for legislation to remove disabilities against the effective right, of association by workers became more manifest with time. State after state, therefore, passed laws to assure trade-unions the opportunity which they already had in the rest of the English-speaking world. But a majority of the Court remained obdurate and imposed a doctrinaire view of the Constitution against such legislation. One can only surmise what would have been the gain to social peace and economic security had the dissenting views expressed more than twenty years ago by Mr. Justice Holmes been the Court’s views: —

In present conditions a workman not unnaturally may believe that only by belonging to a union can he secure a contract that shall be fair to him. … If that belief, whether right or wrong, may be held by a reasonable man, it seems to me that it may be enforced by law in order to establish the equality of position between the parties in which liberty of contract begins. Whether in the long run it is wise for the working men to enact legislation of this sort is not my concern, but I am strongly of the opinion that there is nothing in the Constitution of the United States to prevent it. . . .

V

Mr. Justice Holmes denied that the Constitution stereotyped any particular distribution of economic power for all time. With the clean precision of a surgeon he uncovered the process by which, under the guise of deductive reasoning, partial claims were given the shelter of the Constitution as comprehensive interests of property: —

Delusive exactness is a source of fallacy throughout the law. By calling a business ‘property’ you make it seem like land, and lead up to the conclusion that a statute cannot substantially cut down the advantages of ownership existing before the statute was passed. An established business no doubt may have pecuniary value and commonly is protected by law against various unjustified injuries. But you cannot give it definiteness of contour by calling it a thing. It is a course of conduct, and like other conduct is subject to substantial modification according to time and circumstances both in itself and in regard to what shall justify doing it a harm.

By a steady extension of doctrines which, to Mr. Justice Holmes, had no justification in the Constitution, a majority of the Court persistently denied exertions of the legislature toward reconciling individual enterprise and social welfare. Abstract conceptions regarding property and ‘liberty of contract’ were the swords with which these measures were struck down. Mr. Justice Holmes was finally roused to an unusual judicial protest. His dissent from the decision of the majority in declaring unconstitutional a New York statute regulating theatre-ticket scalping fully reveals his mind. It also gives a glimpse of the importance he attached to art throughout life: —

We fear to grant power and are unwilling to recognize it when it exists . . . when legislatures are held to be authorized to do anything considerably affecting public welfare it is covered by apologetic phrases like the police power, or the statement that the business concerned has been dedicated to a public use. The former expression is convenient, to be sure, to conciliate the mind to something that needs explanation: the fact that the constitutional requirement of compensation when property is taken cannot be pressed to its grammatical extreme; that property rights may be taken for public purposes without pay if you do not take too much; that some play must be allowed to the joints if the machine is to work. But police power often is used in a wide sense to cover and, as I said, to apologize for the general power of the legislature to make a part of the community uncomfortable by a change.

I do not believe in such apologies. I think the proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain. Coming down to the case before us, I think, as I intimated in Adkins v. Children’s Hospital, 261 U.S. 525, 569, that the notion that a business is clothed with a public interest and has been devoted to a public use is little more than a fiction intended to beautify what is disagreeable to the sufferers. The truth seems to me to be that, subject to compensation when compensation is due, the legislature may forbid or restrict any business when it has a sufficient force of public opinion behind it. Lotteries were thought useful adjuncts of the State a century or so ago; now they are believed to be immoral and they have been stopped. Wine has been thought good for man from the time of the Apostle until recent years. But when public opinion changed it did not need the Eighteenth Amendment, notwithstanding the Fourteenth, to enable a State to say that the business should end. Mugler v. Kansas, 123 U.S. 623. What has happened to lotteries and wine might happen to theatres in some moral storm of the future, not because theatres were devoted to a public use, but because people had come to think that way.

But if we are to yield to fashionable conventions, it seems to me that theatres are as much devoted to public use as anything well can be. We have not that respect for art that is one of the glories of France. But to many people the superfluous is the necessary, and it seems to me that Government does not go beyond its sphere in attempting to make life livable for them. I am far from saying that I think that this particular law is a wise and rational provision. That is not my affair. But if the people of the State of New York speaking by their authorized voice say that they want it, I see nothing in the Constitution of the United States to prevent their having their will.

Taxation is perhaps the severest testing ground for the objectivity and wisdom of a social thinker. The enormous increase in the cost of society and the extent to which wealth is now represented by intangibles, the profound change in the relation of the individual to government and the resulting widespread insistence on security, are subjecting public finance to the most exacting demands. To balance budgets, to pay for the costs of progressively civilized social standards, to safeguard the future, and to divide these burdens fairly among different interests in the community, put the utmost strain on the ingenuity of statesmen. They must constantly explore new sources of revenue and find means of preventing the circumvention of their discoveries. Subject as they are, in English-speaking countries, to popular control, they should not be denied adequate latitude of power for their extraordinarily difficult tasks.

Mr. Justice Holmes never yielded to finicky limitations or doctrinaire formulas, drawn from the general language of the Constitution, as a means of circumscribing the discretion of legislatures in the necessarily empirical process of tapping new revenue or stopping new devices for evasion. He did not have a curmudgeon’s feelings about his own taxes. A secretary who exclaimed ‘Don’t you hate to pay taxes!’ was rebuked with the hot response, ‘No, young feller. I like to pay taxes. With them I buy civilization.’ And as a judge he consistently refused to accentuate fiscal difficulties of government by injecting into the Constitution his own notions of fiscal policy. Nor did he believe that there was anything in the Constitution to bar even a conscious use of the taxing power for readjusting the social equilibrium. One of his last utterances as a Justice gives the general flavor of his many opinions in tax cases: —

I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in catting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. … It seems to me to be exceeding our powers to declare such a tax a denial of due process of law. . . . And what are the grounds? Simply, so far as I can see, that it is disagreeable to a bondholder to be taxed in two places. Very probably it might be good policy to restrict taxation to a single place, and perhaps the technical conceptions of domicil may be the best determinant. But it seems to me that if that result is to be reached it should be reached through understanding among the States, by uniform legislation or otherwise, not by evoking a constitutional prohibition from the void of ’due process of law,’ when logic, tradition, and authority have united to declare the right of the State to lay the now prohibited tax.

I have indicated the general direction of Mr. Justice Holmes’s judicial mind on the great issues of the constitutional position of property in our society. During most of his thirty years on the Supreme Bench, and especially during the second half of his tenure, his were not the views of a majority of the Court. But the good that men do lives after them. In the spring of 1937 the old views of Mr. Justice Holmes began to be the new constitutional direction of the Court.

His own constitutional outlook was, throughout a long life, free from fluctuations. This was so because it was born of a deeply rooted and coherent philosophy concerning the dynamic character of the American Constitution and of a judge’s function in construing it. If he threw the weight of his authority on the side of social readjustments through legislation it was not because of any faith in panaceas in general or in measures of social amelioration in particular. He personally ‘disbelieved all the popular conceptions of socialism,’ and came dangerously close to believing in the simplicities of the wage-fund theory. But his skepticism and even hostility, as a matter of private judgment, toward legislation which he was ready to sustain as a judge only serve to add cubits to his judicial stature. For he thereby transcended personal predilections and private notions of social policy, and became truly the impersonal voice of the Constitution.