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THE GREEN BAG
morals and not in any real or substantial degree to the health of the employees," indicates that a bare majority of the court does not regard police legislation limiting the hours of labor in a private business for purely social and economic reasons as within the constitutional power of the state. What is said of a law limiting the hours of labor would apply equally to a law fixing rates and charges in a private business. The dis senting opinion of Holmes, J. in this case, is, however, suggestive: "State constitu tions 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 (the New York law) and which, equally with this, interfere with the liberty to contract. . . . The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. ... A consti tution is not intended to embody a particu lar 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 different views, and the accident of our finding certain opinions natural and familiar, or novel, or even shocking, ought not to conclude our judg ment upon the question whether statutes embodying them conflict with the Constitu tion of the United States. ... I think that the word 'liberty' in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of dominant opinion. " If dominant opinion should favor a return to the paternalistic conditions of mediaeval England, or to some modified and less extensive control of private business, such as reasonable restrictions on the hours of labor, and prohibitions on the manipula tion of prices, however inexpedient such legislation might by some be thought to be, the Constitution should not be consstrued to check the working out of such opinion. MADISON, Wis., September, 1905.
