“This quoted summary of the report of the commission to the legislature, which clearly and fairly epitomizes what is more fully set forth in the body of the report, is based upon a most voluminous array of statistical tables, extracts from the works of philosophical writers and the industrial laws of many countries, all of which are designed to show that our own system of dealing with industrial accidents is economically, morally, and legally unsound. Under our form of government, however, courts must regard all economical, philosophical and moral theories, attractive and desirable though they may be, as subordinate to the primary question whether they can be moulded into statutes without infringing upon the letter or spirit of our written constitutions.... With these considerations in mind we turn to the purely legal phases of the controversy.” (Ives v. South Buffalo Ry. Co., 201 N. Y. 271, 287, 1911.)
A different attitude was shown by the Supreme Court of the United States in its reception of the brief filed by Mr. Louis D. Brandeis on behalf of the constitutionality of an Oregon statute limiting woman’s work to ten hours a day. Besides decisions, he included the legislation of many States and of European countries. Then follow extracts from over ninety reports of committees, bureaus of statistics, commissioners of hygiene, inspectors of factories, both in this country and in Europe, to the effect that long hours of labour are dangerous for women, primarily because of their special physical organization. Following them are extracts from similar reports discussing the general benefits of shorter hours from the economic aspect of the question. Justice Brewer said:
“The legislation and opinions referred to in the margin may not be, technically speaking, authorities, and in them is little or no discussion of the constitutional question presented to us for determination, yet they are significant of a widespread belief that woman’s physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should be permitted to toil. Constitutional questions, it is true, are not settled by even a consensus of present public opinion, for it is a peculiar value of a written constitution that it places in unchanging form limitations upon legislative action, and thus gives a permanence and stability to popular government which otherwise would be lacking. At the same time, when a question of fact is debated and debatable, and the extent to which a special constitutional limitation goes is affected by the truth in respect to that fact, a widespread and long continued belief concerning it is worthy of consideration. We take judicial cognizance of all matters of general knowledge.” (Muller v. Oregon, 208 U. S. 412, 420, 1907.)
The decision displays two qualities which are characteristic of the winning counsel since his elevation to the bench; it keeps its eye on the object instead of devoting itself to abstract conceptions, and it emphasizes the interest of society in new forms of protection against poverty, disease, and other evils. To these social interests, the property of the individual must often be partly sacrificed and in recent years we have seen the courts upholding the guarantee of bank deposits, State regulation of insurance rates, and suspension of the right of landlords to recover unreasonable rents or dispossess their tenants. All this would have been regarded as impossible fifty years ago.
These extensions of governmental power over property have been accompanied by legislation severely restricting freedom of discussion of still more radical types of State control. It is argued that the right of free speech must face limitation like the right of the landlord. The true policy is exactly the opposite. Not only is it unjust for the State to carry out one form of confiscation while severely punishing the discussion of another form, but in an age of new social devices the widest liberty for the expression of opinion is essential, so that the merits and demerits of any proposed plan may be thoroughly known and comparisons made between it and alternative schemes, no matter how radical these alternatives may be. A body of law that was determined to stand still might discourage thought with no serious damage; but law which is determined to move needs the utmost possible light so that it may be sure of moving forward.
No one has expressed so well the new importance of social interests, and the value of freedom of speech; no one, indeed, has expressed so nobly the task and hopes of American Law, as the man of whom it is said that among the long list of American judges, he seems “the only one who has framed for himself a system of legal ideas and general truths of life, and composed his opinions in harmony with the system already framed.” (John H. Wigmore, “Justice Holmes and the Law of Torts,” 29 Harv. L. Rev. 601.) Yet no one has been more cautious than Justice Holmes in warning us not to expect too much from law.
“The law, so far as it depends on learning, is indeed, as it has been called, the government of the living by the dead. It cannot be helped, it is as it should be, that the law is behind the times. As law embodies beliefs that have triumphed in the battle of ideas and then have translated themselves into action, while there is still doubt, while opposite convictions still keep a battle front against each other, the time for law has not come; the notion destined to prevail is not yet entitled to the field.” (“Collected Legal Papers,” 138, 294.)
It is the work of the present generation of American lawyers to be sure that the right side wins in the many conflicts now waging. We cannot be certain that the law will make itself rational, while we remain as inactive as in the past, absorbed in our own routine, and occasionally pausing to say, “All’s right with the world”; for, to quote Holmes once more, “The mode in which the inevitable comes to pass is through effort.”
Zechariah Chafee, Jr.