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THE GREEN BAG
Minnesota (177 U.S. 164), supporting the prohibition of the Sunday work of barbers; Knoxville Iron Co. v. Harbison (183 U. S. 13), affirming the validity of truck legisla tion; and Atkin v. Kansas (191 U. S. 207), upholding state control of the conditions of employment on public contracts. This attitude of the Supreme Court has been influenced by an important and obvious consideration. A decision of a state court even of last resort, giving an unduly wide scope to the rights of liberty or of property as against the legislative - power, is incon clusive in so far as it interprets the Four teenth Amendment; and although its con struction of the state constitution is con clusive, that constitution can be changed with comparative facility, so as to establish the legislative power which the court has denied. Thus the decision in Colorado, de claring the eight-hour law of that state in valid, has led to a constitutional amendment sanctioning such legislation; and an amend ment is pending in New York, which is to give to the legislature the control over the rate of wages on public contracts that was denied to it by the Court of Appeals. But a decision of the Supreme Court, in terpreting the Fourteenth Amendment to the prejudice of legislative power, not only nullifies state constitutional amendments . seeking to neutralize the effect of decisions of state courts, but, in its turn, would be practically irreversible were the Supreme Court in the future to consider itself bound by its own decisions, for the difficulties in the way of changing the Fourteenth Amend ment are almost insuperable. That amend ment ought, therefore, to be interpreted so as to enforce only that fundamental law quod semper, quod ubique, quod ab ómnibus, which is uniformly recognized as binding by civilized nations — that justice which pro tects the vested rights of property and the essentials of remedial procedure. And this had been the controlling con sideration in the previous decisions of the Supreme Court. Nowhere has this been ex
pressed more clearly than in Holden v. Hardy, where the court says "... while the cardinal principles of justice are immu table . . . the constitution of the United States, which is necessarily and to a large extent inflexible and exceedingly difficult of amendment, should not be so construed as to deprive the states of the power to so amend their laws as to make them conform to the wishes of the citizens as they may deem best for the public welfare without bringing them into conflict with the supreme law of the land. Of course, it is impossible to forecast the character or extent of the changes, but in view of the fact that, from the day Magna Charta was signed to the present moment, amendments to the struc ture of the law have been made with in creasing frequency, it is impossible to sup pose that they will not continue, and the law be forced to adapt itself to new condi tions of society, and particularly to the new relations between employers and employees, as they arise." Would it not have been in conformity to the views so well expressed, to sustain the legislation of New York, after it had been sustained by the judiciary of the state? A decision which reads into the Four teenth Amendment a vague and contro verted concept of the liberty of contract, is a novel, and hardly a fortunate step in the development of our constitutional law. Ill If the Supreme Court felt called upon or bound to review the legislation of the state with all the freedom of a state court, it is still to be regretted that it should have deemed it proper to impugn the good faith of the state legislature. The prevailing opinion speaks of "at least a suspicion that there was some other motive dominating the legislature than the purpose to subserve the public health or welfare." Courts gen erally refrain from questioning the motives of legislatures; if it is done at all, there should at least be some reasonable ground
