LAISSEZ FAIRE AND THE SUPREME COURT plete freedom of the individual can and can not be curtailed, as to the real meaning and scope that should be given to the words "liberty and property," as used in the Con stitution, it necessarily decides these ques tions, not according to a formulated common law, for there is no common law which con trols the constitution, but rather as ques tions of fact and of public policy, a public policy suited to a developing and growing age and which in the nature of things must be the policy which seems best to the par ticular judge in the light of his own social and political training and experience. And such being the case, a divergence of opinion is inevitable. Many agree on one or two, but few agree on many or all of the social and political theories and policies of the day. On these questions and issues, indeed, political parties, churches, and even families, are usually hopelessly divided. In the form ing of a social theory the environment of the thinker is an all important factor. It was only yesterday that the writer asked a friend the nature of his politics and received the response, " I am a Southern gentleman and therefore a Democrat," and there can be no doubt that in the Supreme Court of the United States, and sometimes in the same man, we have represented the individ ualist and the collectivist, the nationalist and the home ruler, the aristocrat and the democrat. The only fact that is at all illogical or surprising is, that Mr. Justice Brewer, who in judicial opinions and public speeches has so eloquently pleaded the cause of local home rule and of state sovereignty, should have, whenever the contract of employment has been concerned, insisted upon the rights of the majority of the mem bers of the Supreme Court of the United States, to oppose their individual judgment on social and economic questions and ques tions of state industrial public policy to the judgment of the state courts and state legislatures. Nor has this protest against the laissez faire idea, this protest against capitalism,
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been confined to the laboring classes alone, or been reflected alone in decisions which deal with the conflict between capital and labor. The support of President Roosevelt, indeed, and his enormous popularity does not come from the laboring classes alone, but from the farmer and the small business man. Just as in England, the burgeoisie are becoming divided among themselves, or perhaps it would be better to say that the great trust magnates are coming to be looked upon in much the same light and in a large measure to take the place of the old feudal aristocracy who through their own individual power, or by means of monopolies granted by the Crown, crushed out competitive industry or levied tribute upon it. It mat ters little indeed how a monopoly is obtained as long as it is a monopoly, whether it be by royal grant or by the power of accumulated and combined capital under the sanction or protection of a laissez faire constitutional construction. As a matter of fact the pro tests against rate discriminations, rebating and the standard oil monopoly have come rather from the small producer and business man than from the laborer. Both in Eng land and in America we have passed through a cycleof politico-legalthought. InEngland, formerly, practically all combinations and almost all of the modern forms of commer cial organization were unlawful. The busi ness of the middle man was unlawful; the business of the modern wholesale grocer was unlawful. It was a criminal offense to buy food or victuals which were on their way to the market for the purpose of reselling them, or to buy, for purpose of resale, large quanti ties of food at any time. This, however, was before the days of the rise of capitalism. It was at a time when the laws of England were in the hands of the gentry, the land holding, or military classes. It was for the interest of these to oppose combination in every form. They were jealous of the growing power of the business man. It was for their interest to make, as they did make, both the trade combination and the labor combination or
