Our Governmental Machine

But again, they say, admitting the ideas advanced are entirely false, it is still desirable that they should be circulated. In open conflict between truth and falsehood, the truth can always be depended upon to win. And the very conflict of ideas is a desirable thing, for in the conflict of thought, thinking is stimulated.

Finally, along comes the practical politician and says: "What harm does freedom of speech do, anyway? The mass of the people are sound and cannot be swept off their feet. Speech is to the radical what a safety valve is to a boiler. Let 'em talk."

Whether the due process clause is wise, is an even more controversial question. On the surface, at least, it appears to be exceedingly desirable. Arbitrary and irrational action is guarded against and the rights of the minority to life, liberty and property are protected. What further justification is necessary? And yet, as we have seen, in so far as this clause relates to substantive rights, its exceeding indefiniteness gives almost arbitrary power to the court. The question has frequently been raised whether it is consistent with democracy to place power of this character in the hands of nine men appointed for life. In theory, at least, the legislatures are the policy-determining bodies. By virtue of this clause, however, there has been granted to the Supreme Court a power of veto over practically all regulatory legislation, which the legislatures may desire to enact, more effective in its action by far than that possessed by the President of the United States over acts of Congress. At least

three hundred acts have been vetoed, the majority of them, perhaps, having arisen under the due process clause. In some cases the decisions have been five to four, i. e., five judges have taken one side and four the other. This fact in itself indicates the vagueness of the clause and the degree to which individual judgment enters in its interpretation. It gives further point to the question previously asked: Is the possession of such extensive and arbitrary power by a group of judges appointed for life consistent with democratic theory? Obviously some inconsistency exists. But is it a sign of folly or of wisdom? This in its turn raises the question of the relative merits of democracy and aristocracy. Into this we cannot go.

What has been the effect of the provision from a practical point of view? In general has it not protected life, liberty and property? Has it not prevented arbitrary action? To ask these questions is to invite others. Have property rights in France and England been grossly violated? Have the citizens of Canada been subjected to arbitrary actions? And yet "due process" is unknown beyond our own boundaries!

To dismiss the subject thus summarily, however, would be wholly inadequate. The fact is that the due process clause has written the philosophy of the majority of the Supreme Court into our Constitution. Nowhere has this been more clearly expressed than in the dissent by Mr. Justice Holmes in the case of Lochner v. New York. "This case is decided upon an economic theory which a large part of the country

does not entertain," he said. "If it were a question whether I agreed with that theory I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. . . . The fourteenth amendment does not enact Mr. Herbert Spencer's Social Statics. . . . I think the word liberty in the fourteenth amendement is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and the law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us.” Mr. Justice Holmes occupies a unique position in the court, and is frequently overruled in his interpretation of this clause.

One consequence of the situation is that social and economic legislation sometimes desired by overwhelming majorities in our state legislatures is frequently declared null and void by the court. To what extent this is due to the fact that the judges are appointed for life and thus lose touch with the people, it is difficult to say. To what extent the fact that the members of this tribunal are as a general rule twenty years older than the average legislator and hence frequently have a philosophy twenty years behind that of the

legislators, contributes to the same end, it is almost impossible to estimate. Be that as it may, an important factor in producing the situation in which it can be said that our social and economic legislation is twenty years behind pre-war Europe, is the veto which the Supreme Court exercises through its interpretation of the "due process" clause of the fourteenth amendment.

On behalf of the practice it can be argued that we can very well afford to wait and profit by Europe's experience. In criticism of it, the point can be made that twenty years is an exceedingly long time to compel a class or group of people to live under conditions which elsewhere have already been recognized as meriting change.

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