IV
In interpreting the "specific clauses" of our organic law, the courts experience comparatively little difficulty, but in interpreting the "general clauses" there is a fair chance that they may go astray. The constitutional prohibition that no state shall grant letters of marque and reprisal, coin money, etc., is not easily misunderstood, but the words of the fourteenth amendment which prohibit the states from depriving any one of property without "due process of law" has a good deal of flexibility of meaning. In a general way, it means that no one shall be deprived of property without a hearing or without compensation unless "the general interests of the community" demand it. The interpretation of such a clause necessarily involves the exercise of legislative discretion.
Under the constitutional system as developed in this country the political philosophy of the judges is a matter of vital importance. They are policy determining officers, because they have power to declare null and void "on principles of constitutional law which are scarcely more than general moral precepts," laws enacted by the legislative authority. It is this function of declaring laws unconstitutional, especially as violative of broad and undefinable guaranties that "no one shall be deprived of life, liberty or property without due process of law," which has made the courts in this country essentially law making bodies, determining in the end what legislative policies shall or shall not be adopted. . . . There are under this clause no fixed or definite standards for determining what laws are constitutional and what are unconstitutional. Judges are thus exercising political functions, without corresponding political responsibility; and inasmuch as such functions are being exercised in a manner opposed to public sentiment, popular criticism of the courts is a necessary consequence.[1]
What is necessary to the public health, safety and morals is a question which should be determined in the light of the particular facts and circumstances existing at a given time and place. These are matters which "the prevailing morality or the strong and preponderant opinion" of society should properly control.
A tenement-house act might seem absurd in Arizona, a statute regulating the grazing of sheep might seem absurd in Greater New York. . . . A law regulating the hours of labor in canneries would have been laughed out of the legislature or the courts seventy years ago, for the housewife did her own canning in the wholesome conditions of her own kitchen; yet such a statute may be very necessary under the conditions now obtaining, for example, in the fruit-growing regions of central New York.[2]
A laissez-faire philosophy may have answered the needs of our grandparents, but it has little place amid the conditions of modern life. The political philosophy which holds that "that country is governed best which is governed least" may have been all well enough on the frontier, but it is out of date in an age of cities. When man's relations with his fellows were few and far between, comparatively few restraints upon the individual answered every purpose, but in the crowded center and in a time when the railway, the telephone and the telegraph have vastly
