2O
THE GREEN BAG
down, and in the writings of the old English lawyers, liberty denotes nothing more than absence of personal restraint. (See on this point Shattuck, The true meaning of the term liberty, etc., 4 Harv. Law Rev., 365.) It is altogether probable that to most people of the present time it connotes ideas differ ent from both these older ones. A fundamental and undisputed rule of interpretation is that words must be under stood in their ordinary meaning unless it clearly appears that they are used in some special, unusual sense. If it should appear that the word liberty is not ordinarily used, by the people of to-day, in the sense attri buted to it by the courts, would there by any warrant for continuing to so interpret it? It is no answer to say, that at the time when the fourteenth amendment was adopted, people did use it in that sense. Fifty years ago the word "write" meant exclusively writing with the pen, pencil or stylus. Would that be a reason for hold ing that typewriting could not be included in the word "writing" as used in a statute passed years ago? I have been unable to discover a case in which it was held, that where the meaning of a word used in a statute or constitution has become modified in the popular mind, the courts must nevertheless adhere to the obsolete sense. Common reason would, teach one differently, with the exception, perhaps, of a possible case where an accep tation of the modified sense would work an absurdity. Such is evidently not the case here. On the contrary, in the opinion of, probably, a majority of modern people, the sense given to the word liberty, by the precedents, works a palpable absurdity when applied to measures adopted for the protection of the people against some of the evils of industrial competition. In the words of Lord Ellenborough : "Communis opinio is evidence of what the law is. " (Isherwood v. Oldknow, 3 Maule & Sel., 396.) Nor is this a case for applying the rule
that a series of precedents should be adhered to, though the decision was originally erroneous, because it is better to abide by a faulty law than have a law unstable and changing. That rule is very properly fol lowed where the precedents have become a guide by which the people have arranged their affairs, so that a reversal would throw the business of the community into con fusion. But here we do not have a rule of property; it is rather a rule of public policy, a rule of legislation, as a similar question of interpretation has been called. (Greencastle Turnpike Co. v. State, 28 Ind. 382; see also Willis v. Owen, 43 Tex. 41.) So it appears that our law is very well able to purge itself of doctrines regarding the interpretation of the Constitution, when such doctrines are no longer in accord with the prevailing conceptions of the community regarding the nature of government. We may formulate the rule in this way : When ever a series of precedents is based on con ceptions not inherent in the law itself, but growing out of philosophical opinions regard ing society and the state, and it appears that such philosophical opinions are no longer commonly accepted, the construction of constitutional provisions should be mod ified, even in the face of a long line of pre cedents, so as to harmonize the Constitution with the views commonly entertained in the community. Such a rule would evidently enable the courts to make the present Constitution acceptable to the people, even if the popular deviation from the social theories of a hun dred years ago should progress much farther than it has done as yet, without throwing us back upon the difficult and in many respects unsatisfactory process of constitu tional amendment. The proposed rule does not call for any new and radical departure fromestablishedpractice. Itmerely attempts to express a rational and explicit basis for what the courts have done again and again. They have upset doctrines well-established by precedents, not only because the underly
