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The Green Bag
public insurance, under the second, for instance, labor legislation and regula tion of monopoly, and under the third, pensions and the use of public funds to assist the poor to obtain homes. The attitude of the courts toward all the political and social reform proposals is analyzed, with frequent citation of cases decided. The decisions of the United States Supreme Court naturally receive most attention, but in so far as the problem is a state as well as a federal one, every element which the states contribute to the complexities of the situation receives adequate recognition. The exposition shows clearly to what extent the courts have adopted the more liberal rules of construction, and how, reasoning by analogy, we may infer from the manner in which par ticular subjects have been dealt with in the past the probable solution of the more or less closely related problems of the future. The conclusion reached is that while it is reasonable to expect that a very large number of the new reform meas ures will succeed in securing the sanction of the courts, there are some measures which we "are probably precluded from adopting because of the attitude now taken by our courts towards our prac tically unamendable federal Constitu tion." (We italicize the word now be cause the author is not really so pessi mistic in his outlook as the quotation might seem to imply.) Among such measures he cites government pensions where the recipient is not actually a pauper, the regulation of hours of male labor in other than harmful trades, regulation of the use of urban land, and employment of the powers of taxa tion and eminent domain for the benefit of the needy classes. He also doubts whether the distinction between inter state and intra-state commerce, and
the decentralization of private law which the uniform state laws movement can hardly hope to overcome, make it pos sible for our political organization to develop in accord with economic con ditions which in their nature are national rather than local. Professor Goodnow does not conclude, in view of this situation, that our con stitutional system cannot adapt itself to future exigencies. On the contrary it can if the courts are made to feel the pressure of public opinion. It is prac tically impossible to limit the powers of the judiciary, he says, consequently our only recourse is a persistent criti cism of those decisions "which evince a tendency to regard the Constitution as a document to be given the same mean ing at all times and under all conditions, and which fail to appreciate that the courts in our system of government have been accorded a really political function, and that, with our Constitu tion in the position in which it actually is, courts should not absolutely block change although they may quite prop erly limit the rate at which it may proceed." Careful to avoid an inference that the courts may be expected to apply more liberal rules of constitutional interpre tation in future than they have in the past, Professor Goodnow, if he errs at all, errs on the side of undue caution. Sound lawyer that he is, he keeps care fully within the bounds of the law actual ly declared. If a paradoxical phrase may be employed, he is a strict constructionist, not of the Constitution, but of the rules of liberal construction which the Supreme Court has itself applied. Of the possible elasticity of these rules, of the possibility of their becoming broadened still further to meet almost every conceivable exigency, he has nothing to say. Because of the same
