LIMITATION OF HOURS OF LABOR were no reasonable grounds for such belief. But assuming that there was reasonable ground to doubt, can we fairly speak of an absence of reasonable ground for belief, when, to the majority of the Court of Ap peals of New York, the evidence of special risk of disease seemed sufficient? If, in view of the striking parallelism of the two cases, jit is possible for Mr. Justice Peckham to ( say: "There is nothing in Holden v. Hardy which covers the case now before us," our confidence in the value of precedents must be seriously shaken. When we compare the attitude of the judges who sat on both cases, we find that the two dissenting judges in Holden v. Hardy (Brewer and Peckham), now help to make up the majority in Lochner v. New York, and one of them (Peckham) writes the prevailing opinion; two of the judges now dissenting (Harlan and White) were with the majority in Holden v. Hardy, while two justices (Justice Brown who wrote the opinion in Holden v. Hardy, and the Chief Justice) are in both cases to be found on the majority side.1 If it may be permitted to doubt whether the two dissenting judges in Holden v. Hardy were quite willing to accept the full consequences of that de cision, attention must still be called to the fact that two of the justices of the court held the law of New York unconstitutional, after having sustained the act of Utah. Not withstanding this, the writer of the present article feels bound to express the opinion that a faithful adherence to the doctrine of Holden v. Hardy should have led to a de cision sustaining the law in Lochner v. New York. II Assuming, however, that Holden v. Hardy did not control the present case, we proceed to ask: Was there any established principle or practice that should have led the Supreme 1 Justices Day and Holmes were not on the bench when Holden v. Hardy was decided; Justice McKenna was on the bench when the case was decided, but not when it was argued.
413
Court to yield its own judgment, as to the reasonableness of the legislation in question, either to that of the state courts, or to that of the legislature? At this day, the power of a court of last resort to form an independent judgment upon the validity of legislation is not to be drawn in question; its exercise is, on the con trary, claimed to be a solemn duty; yet it is also true that at all times the courts have disclaimed the right or power to condemn a legislative policy on the ground of its being inexpedient, unwise, or even inequitable. In the domain of the police power, how ever, it has been found extremely difficult to maintain with strictness the line between law and policy, between the wisdom and the validity of a measure, between individ ual liberty and governmental power — and there has been a marked tendency for courts to constitute themselves into censors of the legislative power, and to nullify statutes that were contrary to their own views of sound and free government. The result of this tendency has been a growing uncertainty as to the limits of legislative power in the control of economic and social interests. The Supreme Court of the United States had hitherto done nothing to increase this uncertainty. It had uniformly stood by the decisions of the courts of last resort of the states in cases involving the constitu tionality of labor legislation. There had, of course, been no occasion to review state decisions declaring such laws to be contrary to the Fourteenth Amend ment, since they are not reached by the appellate jurisdiction of the Supreme Court. It is thus all the more noteworthy that the decisions of the Supreme Court indorsed a construction of the Fourteenth Amendment, which allowed the maintenance of police regulations deemed wise or necessary by the states. The cases are recent and well known: Holden v. Hardy (169 U. S. 366), sustaining the limitation of hours of labor; Petit v.
