In Holden v. Hardy, decided in 1898, the Court, in reliance upon the principle of presumed validity, allowed the burden of proof to remain with those attacking the validity of a statute and upheld a Utah act limiting the period of labor in mines to eight hours per day. Taking cognizance of the fact that labor below the surface of the earth was attended by risk to person and to health and for these reasons had long been the subject of State intervention, the Court registered its willingness to sustain a limitation on freedom of contract which a State legislature had adjudged "necessary for the preservation of health of employees," and for which there were "reasonable grounds for believing that * * * [it was] supported by the facts."[86]
Seven years later, however, a radically altered court was predisposed in favor of the doctrine of judicial notice, through application of which it arrived at the conclusion, in Lochner v. New York, that a law restricting employment in bakeries to ten hours per day and 60 hours per week was an unconstitutional interference with the right of adult laborers, sui juris, to contract with respect to their means of livelihood. Denying that in so holding that the Court was in effect substituting its own judgment for that of the legislature, Justice Peckham, nevertheless, maintained that whether the act was within the police power of the State was a "question that must be answered by the Court"; and then, in disregard of the accumulated medical evidence proffered in support of the act, uttered the following observation: "In looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear to be as healthy as some trades, and is also vastly more healthy than still others. To the common understanding the trade of a baker has never been regarded as an unhealthy one. * * * It might be safely affirmed that almost all occupations more or less affect the health. * * * But are we all, on that account, at the mercy of the legislative majorities?"[87]
Of two dissenting opinions filed in the case, one, prepared by Justice Harlan, stressed the abundance of medical testimony tending to show that the life expectancy of bakers was below average, that their capacity to resist diseases was low, and that they were peculiarly prone to suffer irritations of the eyes, lungs, and bronchial passages; and concluded that the very existence of such evidence left the reasonableness of the measure under review open to discussion and that the the latter fact, of itself, put the statute within legislative discretion. "'Responsibility,' according to Justice Harlan, 'therefore, rests upon the legislators, not upon the courts. No evils arising from such legislation could be more far reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom annul statutes that had received the sanction of the people's representatives. * * * The public interest imperatively demand—that legislative enactments should be recognized and enforced by the courts as embodying the will of the people, unless they are plainly and palpably beyond all question in violation of the fundamental law of the Constitution.'"[88]
The second dissenting opinion written by Justice Holmes has received the greater measure of attention, however, for the views expressed therein were a forecast of the line of reasoning to be followed by the Court some decades later. According to Justice Holmes: "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 to contract. * * * The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. * * * 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 * * * I think that the word 'liberty,' in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law."[89]
In part, Justice Holmes's criticism of his colleagues was unfair, for his "rational and fair man" could not function in a vacuum, and, in appraising the constitutionality of State legislation, could no more avoid being guided by his preferences or "economic predilections" than were the Justices constituting the majority. Insofar as he was resigned to accept the broader conception of due process of law in preference to the historical concept thereof as pertaining to the enforcement rather than the making of law and did not affirmatively advocate a return to the maxim that the possibility of abuse is no argument against possession of a power, Justice Holmes, whether consciously or not, was thus prepared to observe, along with his opponents in the majority, the very practices which were deemed to have rendered inevitable the assumption by the Court of a "perpetual censorship" over State legislation. The basic distinction, therefore, between the positions taken by Justice Peckham for the majority and Justice Holmes, for what was then the minority, was the espousal of the conflicting doctrines of judicial notice by the former and of presumed validity by the latter.
Although the Holmes dissent bore fruit in time in the form of the Bunting v. Oregon[90] and Muller v. Oregon[91] decisions overruling the Lochner Case, the doctrinal approach employed in the earlier of these by Justice Brewer continued to prevail until the depression in the 1930's. In view of the shift in the burden of proof which application of the principle of judicial notice entailed, counsel defending the constitutionality of social legislation developed the practice of submitting voluminous factual briefs replete with medical or other scientific data intended to establish beyond question a substantial relationship between the challenged statute and public health, safety, or morals. Whenever the Court was disposed to uphold measures pertaining to industrial relations, such as laws limiting hours[92] of work, it generally intimated that the facts thus submitted by way of justification had been authenticated sufficiently for it to take judicial cognizance thereof; but whenever it chose to invalidate comparable legislation, such as enactments establishing minimum wages for women and children,[93] it brushed aside such supporting data, proclaimed its inability to perceive any reasonable connection between the statute and the legitimate objectives of health or safety, and condemned the former as an arbitrary interference with freedom of contract.
During the great Depression, however, the laissez faire tenet of self-help was supplanted by the belief that it is peculiarly the duty of government to help those who are unable to help themselves; and to sustain remedial legislation enacted in conformity with the latter philosophy, the Court had to revise extensively its previously formulated concepts of "liberty" under the due process clause. Not only did the Court take judicial notice of the demands for relief arising from the depression when it overturned prior holdings and sustained minimum wage legislation,[94] but in upholding State legislation designed to protect workers in their efforts to organize and bargain collectively, the Court virtually had to exclude from consideration the employer's contention that such legislation interfered with his liberty of contract in contravention of the due process clause and to exalt as a fundamental right the correlative liberty of employees, which right the State legislatures were declared to be competent to protect against interference from private sources. To enable these legislatures to balance the equities, that is, to achieve equality in bargaining power between employer and employees, the Court thus sanctioned a diminution of liberty in the sense of the employer's freedom of contract and a corresponding increase in the measure of liberty enjoyable by the workers. To the extent that it acknowledged that liberty of the individual may be infringed by the coercive conduct of other individuals no less than by the arbitrary action of public officials, the Court in effect transformed the due process clause into a source of encouragement to State legislatures to intervene affirmatively by way of mitigating the effects of such coercion. By such modification of its views, liberty, in the constitutional sense of freedom resulting from restraint upon government, was replaced by the civil liberty which an individual enjoys by virtue of the restraints which government, in his behalf, imposes upon his neighbors.
"Persons" Defined