CONSTITUTIONAL MORALITY[10]

The text of this address is taken from Grote's "History of Greece." The historian, reviewing the state of the Athenian democracy in the age of Kleisthenes, points out that it became necessary to create in the multitude, and through them to force upon the leading men, the rare and difficult sentiment which he terms constitutional morality. He shows that the essence of this sentiment is self-imposed restraint, that few sentiments are more difficult to establish in a community, and that its diffusion, not merely among the majority, but throughout all classes, is the indispensable condition of a government at once free, stable and peaceable. Whoever has studied the history of Greece knows that the Grecian democracy was ultimately overthrown by the acts of her own citizens and their disregard of constitutional morality rather than by the spears of her conquerors.

We American lawyers would be blind, indeed, if we did not recognize that there is at the present time a growing tendency throughout the country to disregard constitutional morality. On all sides we find impatience with constitutional restraints, manifesting itself in many forms and under many pretences, and this impatience is particularly strong with the action of the courts in protecting the individual and the minority against unconstitutional enactments favoring one class at the expense of another. However worded and however concealed under professions of social reform or social justice, the underlying spirit in most instances is that of impatience with any restraint or rule of law.

We are meeting again the oldest and the strongest political plea of the demagogue, so often shown to be the most fallacious and dangerous doctrine that has ever appeared among men, that the people are infallible and can do no wrong, that their cry must be taken as the voice of God, and that whatever at any time seems to be the will of the majority, however ignorant and prejudiced, must be accepted as gospel. The principal political battle-cry to-day seems to be that, if the people are now fit to rule themselves, they no longer need any checks or restraints, that the constitutional form of representative government under which we have lived and prospered has become antiquated and unsatisfactory to the masses, and that we should adopt a pure democracy and leave to the majority itself the decision of every question of government or legislation, with the power to enforce its will or impulse immediately and without restraint.

We find many political and social reformers advocating an absolute legislative body, whose edicts, in response to the wishes, interests, or prejudices of the majority, shall at once become binding on all, no matter how unjust or oppressive these edicts may be. Those who are loudest in thus demanding the supremacy of the legislative power are equally loud in charging that our legislatures are inefficient or corrupt and in proclaiming distrust of the people's representatives in legislative bodies. In one breath we are asked to vest legislatures with power and discretion beyond the control of the courts, and in the next breath we are told that legislative bodies are not to be trusted by the people, and hence that we must have the initiative and the referendum.

Other reformers would vest greater power in the executive, so as to enable him to dictate to legislatures whatever he deemed or professed to think best for the common welfare or for social progress. In the final analysis this would, of course, reduce us to a despotism pure and simple, and place Congress and the state legislatures in the condition of the Roman senate in the second century. Argue as we may from the admonitions and experience of the past, the defiant answer is that the people will select the executive and are prepared to trust him, an answer that singularly disregards the fact that they now select the legislators whom they no longer trust, and that practical reform in legislation is ready to their hand if they will only insist upon character and ability in their representatives.

Others again would deny to the courts the power and duty to declare unconstitutional and void any enactment of a legislative body that was in conflict with the constitution, or, if not going quite so far, would give the courts power to disregard constitutional limitations whenever the judges found or fancied that an enactment was in consonance with prevailing morality or the opinion of the majority in respect of matters relating to the police power or social progress or social justice. They would have the judiciary interpret and enforce a constitution not according to the mandate of the people who adopted it, nor according to the true meaning and intent of the language employed by the framers, nor according to settled general rules and principles, but according to the ever-changing desires or notions or opinions of the majority and the personal ideas of so-called progressive or sympathetic judges. Many of those who charge the judiciary with having usurped the power to determine whether a particular enactment does or does not conflict with the fundamental and supreme law as established by the people themselves, would now place a far greater power in the hands of the courts by authorizing them to expand or contract a constitution by judicial construction, and would thus in reality vest in the judges an arbitrary discretion. Under this doctrine, practically every constitutional restraint could be readily circumvented, perverted, or nullified; constitutional rights could be frittered away, and great landmarks of human progress could be undermined.

We should then have government by the judiciary with a vengeance. Our constitutional system would be no longer reasonably fixed and stable, no longer regulated by the justice of necessary general rules, but would be subject to constant uncertainty and change as judges might think the moral atmosphere of the moment or the will or opinion or interests of the majority required. It would, of course, be better to have no constitutional restraints at all, and to vest supreme power and corresponding responsibility in the legislative branch of our government. It is of the essence of judicial power that judges in deciding cases shall be bound by principles, rules and precedents, that they shall not be permitted to exercise arbitrary discretion, and that they shall be required to give reasons for their decisions. A court bound by no rules or principles at all would not be exercising judicial power as we understand that term. If we were to vest in legislatures or courts the discretion to obey or disobey constitutional restraints according as the prevailing moral or political sentiment might seem to dictate, we would at once deprive such restraints of all practical force and effect, and would have a constitution only in name and form and not in substance. As the late Chief Justice Fuller, clarum et venerabile nomen, so well said in the Lottery case, "our form of government may remain notwithstanding legislation or decision, but, as long ago observed, it is with governments as with religions, the form may survive the substance of the faith."[11]

The limited time at my disposal compels me to confine this address to the aspect of constitutional morality which is presented by the criticism of the courts for refusing to enforce unconstitutional statutes. This seems to me to be the most dangerous of all the lines of attack. I regret that I have not time to deal with other important aspects of my subject, such as the movement for the recall of judges and judicial decisions, the agitation for the initiative and the referendum, and the growing practice on the part of legislatures and executives of abandoning the consideration of constitutional questions and leaving this duty to the courts, thus casting upon the judges the sole responsibility and frequently the unpopularity and even odium of enforcing constitutional restraints.

Few of us, I assume, would seriously suggest that the judicial department is to be above criticism, or that it is to be deemed sacrosanct so that we must bow and submit in silence, without the right of challenge, criticism, or censure, to whatever the courts declare to be law. Such a view would be absurd. Of course, judges make mistakes as the wisest and best men make mistakes. They are not infallible. But neither are our legislative bodies infallible, nor is the crowd. There must be the fullest liberty of criticism and if need be of censure of our judges as of all other public officials. Fair and just criticism, however, would be distinctly educational, and it could tend only to restore the courts to public favor and confidence. The danger is not in freedom of criticism, but in unfair and unfounded criticism supported by distorted or false statements. Our judicial system is inherently sound enough and strong enough to withstand and overcome any fair criticism. We should, therefore, encourage the fullest discussion of judicial decisions in constitutional cases in order that constitutional principles may be adequately explained and the necessity for the observance of constitutional morality brought home to the people. Let us, however, insist that the facts be truthfully stated. If the reasons and principles of justice which support most of the decisions criticized could be explained to all classes in simple language and in terms intelligible to laymen as well as to lawyers, much of the misapprehension of judicial decisions and prejudice against the courts and constitutional restraints would be dispelled. To tell the man in the street or in the workshop that a statute is in conflict with the guaranty of due process of law or of the law of the land, conveys no meaning to his mind; yet, if he understood the fundamental principles involved and the consequences of disregarding them, he might be persuaded of the justice and propriety of the decision under discussion.

I shall call your attention to a few examples of alleged abuse or usurpation of power by the judiciary, and endeavor to show the characteristics of much of the criticism of the judges and the manner in which the masses are being constantly prejudiced and inflamed against the courts.

The case in the New York courts which probably is being more criticized and misrepresented than any other is known as the Tenement House Tobacco case (Matter of Jacobs),[12] decided in January, 1885. The courts then held unconstitutional an act which forbade the manufacture of tobacco products in certain tenement houses in New York and Brooklyn, because the statute unwarrantably and unreasonably interfered with the liberty of the individual. The enactment was an attempt on the part of the owners of large tobacco factories to destroy the competition of cigar manufacturers who worked at home. It was not an honest health measure at all; it was not in fact designed to protect the health of tobacco workers, and it did not contain a single provision tending in any degree to secure sanitary conditions of work or living. Not one word in the opinions of the courts in the Jacobs case prevented the legislature from adopting regulations to secure wholesome conditions in the manufacture of any article. Since that decision, the New York constitution has been carefully revised by a constitutional convention in 1894, and in addition has been repeatedly amended, no less than nineteen separate amendments having been adopted by the people, whilst a large number of additional proposed amendments have been rejected. But in neither the revision nor in any of the amendments, whether adopted or rejected, was any change suggested in the rule of constitutional law declared in the Tenement House case, although the subject was directly called to the attention of the convention. For more than a quarter of a century, the people of the state of New York have acquiesced in the decision of the Court of Appeals as fair, just and satisfactory.

Jacobs with his wife and two children lived in a tenement house in the city of New York and occupied an apartment of seven rooms in a building where there were only three other apartments, all of equal size. In this apartment he carried on the trade of manufacturing cigars, and the rooms in which he did so were separated from the sleeping and cooking-rooms. The testimony showed that there was no odor of tobacco in these sleeping and cooking-rooms. The conditions under which he was carrying on his trade in his own home for the support of himself and his family were much more healthful than if he and his assistants had been compelled to work in a crowded factory, particularly in 1884, when there were no such sanitary conditions in factories as now prevail under the beneficent operation of our present public health and labor laws. It was shown that, when this legislation was enacted, 840,000,000 cigars were being manufactured annually in the city of New York, of which about 370,000,000, or 44 per cent., were made in the homes of dwellers in tenement or apartment houses, and that about two thousand artisans were supporting themselves and their families by thus working at home. The board of health of the city of New York had officially declared, after careful investigation, as set forth in the brief of Mr. Evarts, then the leader of the American bar, "that the health of the tenement-house population is not jeopardized by the manufacture of cigars in those houses; that this bill is not a sanitary measure, and that it has not been approved by this board." It also appeared from this brief that while the death-rate in the city of New York generally was 31 in each 1,000, it was only 9 in each 1,000 in the tenement houses where cigars were being manufactured. The act, if valid and enforceable, would have crushed the competition of home workers with the tobacco factories; it would have deprived the tenement-house dweller of the liberty to exercise his trade of cigar-making at home even under the most sanitary conditions, and it would have driven every such workman and the working members of his family into crowded and generally unhealthful factories, to be harassed and oppressed by strikes and lockouts and the other troubles which attend modern labor conditions, to say nothing of being exposed to all the mischiefs, physical and moral, that are inseparable from crowded workshops. The court held that the statute was not a legitimate health regulation and released Jacobs from imprisonment. The principle of constitutional law recognized and applied was that an individual cannot be made a criminal for working at a lawful trade in his own home under sanitary conditions, and cannot be compelled by discriminatory legislation to labor in a crowded factory. If the provisions of the act had not been declared to be in conflict with the constitutional guaranty of personal liberty, similar statutes could have been passed with respect to all kinds of home work, and all artisans, whether men or women, could have been driven into factories at the dictation of factory owners or trade-unions having sufficient political influence to secure the necessary legislation.

I digress here a moment to point out that people urging particular enactments too often overlook the effect of disregarding a principle and establishing a precedent. Constitutions declare general rules or principles of justice, which sometimes do not coincide with the justice of particular cases. The framing of general rules of conduct so as to bring about practical justice in the greatest number of cases and with the fewest exceptions, constitutes the science of jurisprudence, of which constitution-making is but a branch, and the application of these general rules to practical affairs is the duty of legislatures and courts. The statutes before the courts are frequently recognized and conceded to be only entering wedges and experiments, and, if sustained, are certain to be followed by others far broader and more radical. If legislative power exists to regulate a subject, the extent or degree of its exercise is essentially for the legislature to determine in its discretion and cannot be controlled by the courts. Hence, a court must always consider, in determining the constitutionality of a statute, not merely the features of the particular statute before it and not merely the justice or merits of the particular case as between man and man or between the state and the individual, but what might be done under the same principle if the statute before it were upheld and a precedent established. Thus, if we once grant the power of a legislature to prohibit work at home under sanitary conditions in one trade, then every trade becomes subject to the same power of regulation and prohibition, and all working men and women can be driven into crowded factories.

In the Jacobs case, Presiding Justice Noah Davis, speaking for the intermediate appellate court sitting in the city of New York, and undoubtedly acquainted with conditions then and there existing, used the following language: "A careful study of the act has satisfied us that its aim was not 'to improve the public health by prohibiting the manufacture of cigars and preparation of tobacco in any form in tenement houses in certain cases, and regulating the use of tenement houses in certain cases,' as declared in the title, but to suppress and restrain such manufacture in the cases covered by the act for the purpose of preventing successful competition injurious to other modes of manufacturing the same articles.... If the act were general and aimed at all tenement houses, and prohibited for sanitary reasons the manufacture of cigars and tobacco in all such buildings, or if it prohibited such manufacture in the living-rooms of all tenants, another case would be presented. But in the form in which it comes before us it is so unjust in its inequality, so harsh and oppressive upon the labor of poverty, so keenly discriminative in favor of the stronger classes engaged in the same occupation, that it certainly ought not to have been enacted; but, being enacted, ought to be held invalid because it deprives the appellant of his right and liberty to use his occupation in his own house for the support of himself and family, and takes away the value of his labor, which is his property protected by the Constitution equally as though it were in lands or money, without due process of law."[13]

Discussing the Jacobs case, Mr. P. Tecumseh Sherman of the New York bar, who is reputed to be one of the best informed men in our state upon the subject of labor conditions and labor legislation and who was at one time a state commissioner of labor, said in a letter published a few weeks ago that the tenement-house statute, although purporting to be for the public health, was not a reasonable regulation for that purpose, because it arbitrarily selected one article and forbade its manufacture under certain conditions not generally unsanitary, and he added that "as matter of fact, the act was not designed to protect health but to put out of business one set of competitors in a trade war."

Now let me call your attention to two examples of the manner in which this decision is being criticized. In an address delivered at Yale University last month, the mayor of the city of New York, who for many years had been a justice of the state supreme court, criticized the courts and derided the administration of justice in his own state. He referred to the Jacobs case in the following language: "The first case I shall call your attention to is known in my own state as the Tenement House Tobacco case.... You know what a condensed population we have in a part of the city of New York. Well, benevolent men and women in going around there found in little rooms in these crowded tenements certain things being manufactured that were not wholesome. They found tobacco being manufactured into its various products in the living-rooms of these poor tenements. Benevolent people who helped the poor saw it and they saw the evils of it. They saw little children born into this world and brought up in bedrooms and kitchens in the fumes and odors of tobacco. They also saw longer hours of work than would be the case if workers left their work at the shop and went home. So they went to the legislature and got a law passed forbidding the manufacture of tobacco in the living-rooms of these tenements." Mayor Gaynor then proceeded to criticize and condemn the Court of Appeals for its reasoning and decision.

The facts, however, were that the statute was not limited to "the living-rooms of these tenements," but applied to every room, and that the promoters of this legislation were not the benevolent men and women who visit and help the poor, as Mayor Gaynor imagined, but the owners of tobacco factories who desired to crush the competition of independent workers. Nor was there anything in the case before the courts to support the statement that any one had seen "little children born into this world and brought up in bedrooms and kitchens in the fumes and odors of tobacco." No such conditions were before the courts, and the contrary was proved by unimpeached evidence in the Jacobs case, as any one reading the record could see. But, even if the picture had been true, the decision in this case did not in any way whatever prevent proper legislation prohibiting the manufacture of tobacco products in the bedrooms and kitchens of crowded tenement houses or under unsanitary conditions.

Ex-President Roosevelt is equally inaccurate in his criticism of the Jacobs case. He is reported as having said in one of his recent speeches that "the decision of the court in this case retarded by at least twenty years the work of tenement-house reform and was directly responsible for causing hundreds of thousands of American citizens now alive to be brought up under conditions of reeking filth and squalor, which measurably decreased their chance of turning out to be good citizens." The truth is that the decision did not retard tenement-house reform by a single day, and did not prevent the enactment of a single provision for securing sanitary conditions for those who work at home. In fact, the necessary legislation has since been readily secured and enacted in New York without any amendment of the state constitution. Our public health and labor laws now regulate the manufacture of tobacco and other articles in homes and require and secure sanitary conditions, and licenses authorizing manufacturing at home are issued subject to cancellation at any time if the surroundings become unsanitary.

Mr. Sherman characterized as absurd the statement made by Mr. Roosevelt in regard to the effect of this decision, and added that "so far, then, from having done harm in the way of sanitary reform, the decision in the Jacobs case has done good by giving the reform a proper direction and object. Mr. Roosevelt's criticism receives a ready chorus of approval from a large body of ill-informed reformers who seek to prevent some of the evils of 'sweating' by arbitrarily forbidding all home manufacture in tenements. But the vast majority of tenement houses in New York are of a class better described as apartment houses, which are perfectly sanitary, and in such houses there is much home work of a good kind, such as fine sewing, art work, &c., and under good conditions; and it would be a deplorable and unnecessary interference with liberty to forbid such work as an incident to the prevention of home work in unsanitary slums."

Another New York case which is being similarly criticized and misrepresented is what is known as the Bakers case, or People vs. Lochner.[14] The decision in this case declaring a statute unconstitutional was that of the Supreme Court of the United States and not of the New York Court of Appeals; in fact the latter court sustained the act, although by a divided court. Mayor Gaynor explained this decision to his audience at Yale, composed largely of law students, in the following language: "The next case in order was the bake-oven case in my state. A bake-oven, you know, is underground. And if any of you ever were in a bake-oven I do not need to say another word about bake-ovens. It is the hottest and most uncomfortable place on the face of the earth. It is a hard place to work in. It is hot and unhealthy, and no one can stand it without injury to health. So in the same way in the state of New York we had an act passed prescribing sanitary regulations for the bakeries.... These bake-ovens are exceptional. They are underground and as hot as Tophet, if I may use such an expression here.... The law was passed prescribing regulations for them. One of the regulations was that ten hours a night was all that a baker should work in these places." And Mr. Roosevelt is reported in the newspapers as criticizing this decision and stating to his audiences that "this New York law prevented the employment of men in filthy cellar bakeries for longer than ten hours a day."

The statute in question applied to manufacturers of bread, biscuits and confectionery. Taken in connection with the then existing Public Health Law, it contained adequate provisions for securing the best conditions of sanitation and ventilation and for safeguarding bakers from the effects of heat and of breathing flour or other particles. There was no distinction drawn in the act as to hours of labor between sanitary and unsanitary conditions of work, or between bakers and other employees, or between night and day work. The power of the legislature to prevent the manufacture of bread or other articles of food in cellars or in underground bake-ovens or in filthy and unsanitary places, whether above or below ground, was not challenged. The provisions of the act tending to secure sanitary conditions were not interfered with or set aside by the courts, and they have ever since been enforced as valid for all purposes. The act was not confined in its operation to workmen compelled to labor at night underground, but applied to everyone employed day or night in factories, above or below ground, in which bread, confectionery, or biscuits were manufactured. It is true that medical authorities were cited to the courts in support of the view that the trade of a baker was injurious to health, but such authorities were based upon statistics gathered under conditions of labor which could not have existed then and cannot exist now in New York if the elaborate regulations of our public health and labor laws be duly enforced. There were, however, conflicting medical authorities cited to the court, which asserted that the trade was not unwholesome.

Lochner owned a bakery at Utica in which he worked himself and employed three or four workmen. There was only one oven, and it was above ground. The building was clean, especially well ventilated and sanitary. The only question before the court in the case was whether Lochner could be made a criminal and imprisoned for permitting his workmen to labor more than ten hours in any day under the best sanitary conditions, and the Supreme Court held that this could not be done without violating his constitutional rights. Had the conditions of work in bread, biscuit, or confectionery factories in the state of New York been shown to have been unusually dangerous and necessarily unwholesome, the law would undoubtedly have been sustained by the Supreme Court, as was the Utah miners' act in Holden vs. Hardy.[15] No one who has studied the decisions of the New York courts or of the Supreme Court of the United States can doubt that any statutory provision reasonably tending to protect the health of bakers and other workmen and to prevent labor in unhealthful places would be upheld as clearly within the police power of the legislature.

The act, moreover, was one-sided and discriminatory in that it made the employer a criminal but left the workman free to do as he saw fit. A baker working for A for ten hours in one day was left at liberty to go next door to B, A's competitor, and, if he saw fit, work another ten hours for B. In fact, as I am told, the informer on whose testimony Lochner was convicted frequently worked ten hours a day for Lochner and a number of hours additional in another bakery. If the act had been honestly conceived in a desire to safeguard the health of bakers, it would, of course, have provided some punishment for any violation of the law on the part of the workmen, and not have left them at liberty to disregard its spirit whenever they saw fit to do so.

The principle involved in this Bakers case was universal, and if employers in bread, biscuit, or confectionery factories could be made criminals for permitting their employees to labor more than ten hours in any one day, the legislature could enact similar legislation as to every other employment. No court would then have power to regulate the degree of the exercise of legislative discretion in such cases. The provision, which at first limited the workday to ten hours, could thereafter be changed to eight hours, or even to six hours, as was advocated in More's "Utopia."

In February of this year, Mr. Roosevelt delivered an address before the Ohio constitutional convention, in which he discussed the decision of the Supreme Court of the United States in the Employers' Liability cases,[16] decided while he was President. The court then held that the act of Congress of June 11, 1906, sometimes erroneously called the National Workmen's Compensation Act, attempted to regulate the internal affairs of the several states as well as interstate commerce, that it consequently included a subject not within the constitutional power of Congress, and that the two matters were so blended that they were incapable of separation unless the court made a new statute in the place of the one enacted by Congress. Conscientiously entertaining this view, the majority of the court would have been guilty of the plainest constitutional immorality if they had not declared that the act was beyond the power of Congress and declined to give it effect. No honest men, believing as the majority did, could have done otherwise than obey the constitutional mandate expressly reserving to the states the legislative powers not delegated to Congress. In the light of the long-established and wise rule that courts should avoid judicial legislation and not revise or give effect to a statute in a manner not clearly intended by the legislative body, the justices could not, of course, have upheld and enforced the statute simply because the individual cases before them excited their sympathy or involved the claims of widows. The remedy was obvious and simple. Congress was then in session, and within a few days an amended statute could have been enacted so as to limit the act to interstate commerce, which alone was within the constitutional power of Congress to regulate. After the lapse of three months, such a law was enacted, and being plainly confined to interstate commerce, as the original statute should have been, and would have been if properly and competently drafted, the amended act was unanimously sustained by the Supreme Court as constitutional in the Second Employers' Liability cases, decided this year,[17] when it was held that Congress had power to change the common law rules as to assumption of risk, contributory negligence and fellow-servants' acts in connection with the regulation of interstate commerce.

Speaking of the first decision, Mr. Roosevelt said: "When I was President, we passed a National Workmen's Compensation Act. Under it a railway man named Howard, I think, was killed in Tennessee, and his widow sued for damages. Congress had done all it could to provide the right, but the court stepped in and decreed that Congress had failed. Three of the judges took the extreme position that there was no way in which Congress could act to secure the helpless widow and children against suffering, and that the man's blood and the blood of all similar men when spilled should forever cry aloud in vain for justice. This seems a strong statement, but it is far less strong than the actual facts; and I have difficulty in making the statement with any degree of moderation. The nine justices of the Supreme Court on this question split into five fragments. One man, Justice Moody, in his opinion stated the case in its broadest way and demanded justice for Howard, on grounds that would have meant that in all similar cases thereafter justice and not injustice should be done. Yet the court, by a majority of one, decided as I do not for one moment believe the court would now decide, and not only perpetuated a lamentable injustice in the case of the man himself, but set a standard of injustice for all similar cases. Here again I ask you not to think of mere legal formalism, but to think of the great immutable principles of justice, the great immutable principles of right and wrong, and to ponder what it means to men dependent for their livelihood, and to the women and children dependent upon these men, when the courts of the land deny them the justice to which they are entitled."

Now, if this argument meant anything it certainly meant that, in the opinion of the speaker, an ex-President of the United States, the justices of the Supreme Court should have disregarded the Constitution as they understood it in order to allow a widow to recover notwithstanding the unconstitutionality of the act under and by virtue of which she was suing. You will not find a single word of reference by Mr. Roosevelt in his whole address to the only point upon which the majority, speaking by Mr. Justice White, decided the cases. Of course, the statement of what was actually decided would have been tame and unsensational. The criticism in form and substance was based upon a distorted and unfair statement of what was decided, and it was calculated to create in the minds of the members of the Ohio constitutional convention, as well as in the minds of the uninformed public, the belief that the justices of the Supreme Court of the United States had "set a standard of injustice for all similar cases" and had denied to Congress the power to pass a fair and just employers' liability statute properly limited to interstate commerce. The contrary was plainly the truth, as the subsequent decision of the court had clearly shown, for this latter decision was rendered and published before Mr. Roosevelt made his address.

Another example of distorted statement and unfair criticism of the courts will be found in the same address. It related to the decision of the New York Court of Appeals in the case of Ives vs. South Buffalo Railway Company,[18] decided last year, in which the court held that a statute concededly novel and revolutionary, creating liability on the part of an employer to his workmen although the employer and his agents were wholly free from negligence or fault of any kind and had neglected no duty of care, supervision or selection, was unconstitutional because taking the property of the employer and giving it to the workman without due process of law. Ives was a brakeman employed by the defendant railway company. While walking on the top of the cars of a very long train, he gave a signal to the engineer to close up a space or slack and was thrown to the ground by the resulting jar, concededly without any negligence on the part of the railway company, and probably through his own carelessness. The injury consisted of a sprained ankle and slight bruises. There was no claim in the complaint that the injury was in any sense permanent, and as matter of fact Ives sued for loss of wages during only five weeks, claiming fifty dollars as the measure of his damage. I am informed that the injury was not serious, that Ives entirely recovered and resumed his work within four weeks after the injury, that the railroad company ultimately paid him for his loss of time, that he has since been continuously employed by the same company at similar work, and that in no sense whatever was his ability to earn his livelihood impaired.

Let us turn to the picture drawn by Mr. Roosevelt in describing this case for the instruction and guidance of a constitutional convention. "I am not thinking of the terminology of the decision, nor of what seem to me the hair-splitting and meticulous arguments elaborately worked out to justify a great and terrible miscarriage of justice. Moreover, I am not thinking only of the sufferers in any given case, but of the tens of thousands of others who suffer because of the way this case was decided. In the New York case, the railway employee who was injured was a man named, I believe, Ives. The court admits that by every moral consideration he was entitled to recover as his due the money that the law intended to give him. Yet the court by its decision forces that man to stagger through life maimed, and keeps the money that should be his in the treasury of the company in whose service, as an incident of his regular employment and in the endurance of ordinary risks, he lost the ability to earn his own livelihood. There are thousands of Iveses in this country; thousands of cases such as this come up every year; and while this is true, while the courts deny essential and elementary justice to these men and give to them and the people in exchange for justice a technical and empty formula, it is idle to ask me not to criticize them. As long as injustice is kept thus intrenched by any court, I will protest as strongly as in me lies against such action."

To repeat, as a matter of fact, Ives was not maimed; he was not permanently injured; he was not deprived of the ability to earn his livelihood. Nor did the Court of Appeals admit that by every moral consideration Ives was entitled to recover as his due the money that the law intended to give him. Had that point been before a court of justice, however sympathetic and sentimental, I doubt very much whether it could have held that Ives was entitled, by any moral consideration whatever, to compel the railway company to compensate him for the four or five weeks' loss of wages resulting from no fault on its part but from his own carelessness. The statements that "the court by its decision forces that man to stagger through life maimed" and that "he lost the ability to earn his own livelihood" were simply so much fiction, but, of course they were very effective with emotional audiences and highly calculated to inflame Mr. Roosevelt's hearers and readers against the courts. I venture to assert that it would be difficult to find or indeed to conceive a more unwarranted and unfair misrepresentation of the facts actually before a court.

Another current misrepresentation is that the Supreme Court of the United States in the Second Employers' Liability cases upheld as constitutional a statute of Congress identical with the statute held unconstitutional by the New York Court of Appeals in the Ives case. The people are being told that the New York courts hold the provision requiring due process of law in the fourteenth amendment to mean one thing, whilst the Supreme Court of the United States holds exactly the same provision in the fifth amendment to mean the contrary. But those who will take the trouble to read the two statutes will at once perceive that the act of Congress differs radically from the New York Workmen's Compensation Act. The act of Congress, although abolishing or restricting the rules as to fellow-servants' acts, assumption of risk and contributory negligence, imposes liability on common carriers by railroad only for "injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." On the other hand, the New York statute created liability not in one dangerous employment, such as the business of common carrier by railroad, but in many other employments not necessarily dangerous, and wholly irrespective of negligence or fault on the part of the employer or any of his officers, agents, or employees. In fact, there is nothing in the New York decision or in the opinions of the judges which would invalidate a statute identical with the act of Congress if now enacted by the New York legislature. The Ives case, far from preventing such a statute, would be an authority in its support.

I regret that we have not time to consider further these particular decisions. In my opinion they correctly and wisely applied established principles of constitutional law and constitutional justice and were morally right and just. I am now pleading for fairness and temperance in discussing the decisions of our courts and for the imperative necessity of founding these discussions upon the truth. Ambassador Bryce said in a recent address: "To counsel you to stick to facts is not to dissuade you from philosophical generalizations, but only to remind you ... that the generalizations must spring out of the facts, and without the facts are worthless." In other words, a regard for fact, which is but another term for truth, is or should be as indispensable in law and politics as it is in philosophy.

The criticisms of which the above are fair samples must be refuted because they find constant repetition and have the authority of distinguished leaders of public opinion, who at the present time seem to have the confidence of the people. Their statements are naturally accepted as true. The judges are being similarly misrepresented and assailed on all sides, and they cannot defend themselves. Thus far the bar at large has seemed indifferent, and a misconception of what constitutes good taste imposes silence upon the counsel engaged in the cases which are criticized. The people are being misled, prejudiced and inflamed by false statements and unfair criticism. If the courts are not defended, they may bend before the storm of undeserved censure. Constituted as humanity is, there is grave danger that the judges will be unconsciously intimidated and coerced by this abuse and clamor. Is it not high time that the members of our profession should charge themselves with the task of defending the courts by placing the facts before the people? The bar associations of the country will never be called upon to render a greater service to the profession and to the community than that of stemming this tide of misrepresentation and intemperate abuse and striving to restore confidence in the learning, impartiality and independence of our judges, in the justice of their decisions, and in the necessity of their enforcing constitutional restraints.

Not only are the decisions of the courts constantly distorted and misrepresented, but the people are also being taught that the courts have usurped the power to declare void any statute in conflict with the constitution, and that no such power was ever intended to be conferred by the framers of national or state constitutions. Surely by this time it ought to be manifest that if the courts may not adjudge invalid and refuse to give force and effect to unconstitutional enactments, it is of little or no use to declare in constitutions that legislatures shall not pass bills of attainder, or ex post facto laws, or laws abridging the freedom of speech, or of the press, or prohibiting the free exercise of religion, or denying the right to trial by jury, or imprisoning without trial, or suspending the writ of habeas corpus, or confiscating private property.

Speaking on this subject of judicial power and duty, Hamilton in the "Federalist" used language which cannot be too often repeated. He clearly showed that in 1788 it was understood and contemplated that the courts should exercise the power to adjudge invalid any statute which was in conflict with the Constitution. In fact, such power had then already been exercised by state courts. He said that constitutional limitations "can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservation of particular rights or privileges would amount to nothing.... There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.... The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute; the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."[19]

Equally conclusive and equally worthy of constant repetition is the reasoning of Chief Justice Marshall in Marbury vs. Madison, where he said: "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limitations may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or, that the legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable."[20]

This decision of the Supreme Court to the effect that it is the duty and within the power of the courts to construe constitutions and to refuse to enforce unconstitutional enactments was rendered in 1803. Yet, notwithstanding that the Constitution of the United States has been amended four times since that decision, and that every state constitution has been again and again remodeled or amended, no American constitution has ever denied to the courts the power to construe constitutions or the duty to refuse to enforce statutes which are in conflict with constitutional limitations. If the power to declare void any statute in conflict with the Constitution of the United States was deemed necessary in 1788 when Hamilton was writing his famous essays, it certainly ought to be far more necessary in our day of multiform legislation, vast increase in the functions of the state, and incompetent, reckless and oppressive class legislation interfering in almost every conceivable manner with the rights and liberties of the individual.

Moreover, the Constitution of the United States would probably never have been adopted if the people had understood, as is now pretended, that Congress was to be at liberty to disregard constitutional limitations and guaranties and that there would be no way whatever of preventing a violation by Congress of the constitutional rights of the individual except at the polls. All students of our history know that the Constitution was accepted by the people upon the distinct pledge that amendments embodying a bill of rights to protect the individual against Congress would be immediately adopted. And one of the first acts of the First Congress in September, 1789, was to submit the ten amendments known as the federal bill of rights, which were thereupon ratified by the states and became an integral part of the Constitution. But of what avail or benefit were these amendments if Congress was not to be effectively restrained and bound by them? It is no exaggeration to say that if the courts should now be deprived of the power to protect litigants who invoke constitutional guaranties and should be compelled to enforce, as valid laws, statutes which violate the limitations upon legislative power which the people have deliberately embodied in their fundamental law, our constitutions would become dead letters, and we might as well turn to the pure and unrestrained democracy of Greece and await her fate.

In an inspiring address delivered this year before the New York State Bar Association on the subject of judicial decisions and public feeling, Senator Root eloquently said: "A sovereign people which declares that all men have certain inalienable rights, and imposes upon itself the great impersonal rules of conduct deemed necessary for the preservation of those rights, and at the same time declares that it will disregard those rules whenever, in any particular case, it is the wish of a majority of its voters to do so, establishes as complete a contradiction to the fundamental principles of our government as it is possible to conceive. It abandons absolutely the conception of a justice which is above majorities, of a right in the weak which the strong are bound to respect. It denies the vital truth taught by religion and realized in the hard experience of mankind, and which has inspired every constitution America has produced and every great declaration for human freedom since Magna Carta—the truth that human nature needs to distrust its own impulses and passions, and to establish for its own control the restraining and guiding influence of declared principles of action."

In many of the current assaults upon the judicial department, in support often of schemes having their birthplace on the continent of Europe, we find the complaint that in declaring statutes unconstitutional the courts in this country—state and federal—exercise greater power than the courts of other countries are authorized to exercise. As if that were an argument against American institutions! Every schoolboy knows that the framers intended that our government should differ from every other government in the world. The founders not only intentionally departed from the examples of existing governments, but anxiously sought to establish a new form of republican government, which would perpetuate the spirit of the Declaration of Independence, secure the inalienable rights of the individual, and protect the minority against the oppression or tyranny of the majority. It was because these rights of the individual against majorities and every form of governmental power were to be made secure and sacred, as the founders believed, that we were to differ from other governments. And the essential and effective feature of that difference was to lie in the power vested in the judicial department to uphold and protect these rights. High sounding declarations of the rights of man would mean very little if they were not to be enforceable by the courts.

When our form of government is compared with that of other countries, and we are told that in England or in France or elsewhere so-called progressive measures have been forced into immediate operation by the will of the majority, and that the courts there were powerless to interfere, is it seriously intended to suggest to the people of the United States that they should, therefore, cast aside all constitutional restraints, all their ancient and honest constitutional principles, and leave the protection of life, liberty and property wholly in the hands of the legislative branch? Are there not still certain rights which even those who are assailing our institutions, under the protection of the very Constitution they deride, would want to have protected by our courts? When it is urged that the courts should not have power to declare an act unconstitutional, but should be compelled to enforce all legislative enactments although some of them might conflict with the Constitution, is it realized that the bill of rights would then be left to the arbitrary discretion or caprice of the legislature, and that consequently it would be of no more practical protection to the individual than the paper constitutions of some of the South American republics which, too, contain eloquent declarations of the rights of the individual? Is it forgotten or overlooked that in England and France and all the other countries with whose systems of government ours is being compared, the legislative power is practically supreme, and that it can outlaw or disseize or imprison at its mere will—that it can deny religious liberty, abridge the freedom of speech or of the press, pass bills of attainder and ex post facto laws, suspend the writ of habeas corpus, impose cruel and unusual punishments, deny to the individual accused of crime the right to a jury-trial or even any hearing at all, confiscate private property without compensation, and impair the obligation of contracts?

Let us, for example, suppose that Congress or a state legislature saw fit to imprison those who did not profess the religion of the majority, or observe its forms and tenets. Who could then protect the minority against such tyrannical enactments except the courts, and how could the courts shield them save by declaring the statute unconstitutional and void and refusing to enforce it? We have only to go back a few generations to find just such laws in England and in the American colonies, and it is the repetition of them that our constitutions seek to prevent. Suppose again that Congress or a state legislature should pass a statute abridging the freedom of speech or of the press and making those who violated the statute subject to criminal prosecution and imprisonment. How could the individual be then protected except by the judiciary, and how could the judiciary protect him unless by exercising the power to declare the statute unconstitutional?

Do the agitators who are attacking our constitutional system explain to their listeners that in the foreign governments with which they are making comparisons the legislative power could compel workmen in any trade to work as many hours a day, at such rates of wages, and under such conditions as the majority saw fit to enact? Suppose that the Pennsylvania legislature should pass a statute compelling laborers in coal mines to labor twelve or more hours a day for a compensation fixed by it and providing that refusal should constitute a crime. Or similarly in the case of railroad employees. In doing so, the legislature would find a precedent in the famous English Statute of Labourers as well as in numerous other European enactments. The Pennsylvania legislature might pass an act, similar to that enacted by the British parliament in 1720 and again in 1800, making it a crime for laborers to combine to obtain an advance of wages or to lessen or alter their hours of work. Is it inconceivable that the time may come when the majority of the voters in Pennsylvania will believe that it is imperative thus to regulate labor in coal mines and on the railroads, both of which industries are indispensable, serve every household in the state, affect every individual, rich or poor, and compel all to pay tribute? Might not prejudice and self-interest tempt or impel to such a statute, and might not the majority enact it, particularly if those affected were aliens without political power? Is it inconceivable that the owners of the coal mines and the railroads may some day control a majority in the legislature? But how could these miners and railroad employees be protected from such enactments and criminal prosecutions thereunder unless the courts had the power to declare statutes unconstitutional and to refuse to enforce them because depriving the individual of his constitutional rights?

In nine cases out of ten the answer to these suggestions by those who to-day are assailing the judicial department would undoubtedly be that no one intends to go to any such extreme, and that no one wishes to be placed or to place any one else entirely at the mercy of the legislature. Thus, they would concede that some rights should still be safeguarded by the courts. But does not this answer contain the gist of the whole problem and the whole principle and virtue of the American system of constitutional restraints? If the critics of our system would have some rights, and particularly their own, protected by the courts, must they not then confess that in truth they only wish changes where the rights of others are concerned, and that they would cling to the Constitution and invoke the protection of the judicial power in all those respects in which their own personal liberty and their own personal and property rights are affected? Chief Judge Cullen of the New York Court of Appeals recently said that "the great misfortune of the day is the mania for regulating all human conduct by statute, from responsibility for which few are exempt, since many of our most intelligent and highly educated citizens, who resent as paternalism and socialism legislative interference with affairs in which they are interested, are most persistent in the attempt to regulate by law the conduct of others."[21]

I do not doubt that if we could have an exhaustive debate before a great tribunal of American public opinion and could step by step analyze and sift the arguments against the judicial power in constitutional cases, we would find in the final analysis that those who are so fiercely charging the courts with usurping power by refusing to enforce unconstitutional enactments would still want the continued protection of the courts so far as their own constitutional rights and liberties were concerned, and that they were only asking modification and curtailment in respect of the rights and liberties of others. I am confident that if it were left to the people of the United States to determine by their votes the simple question whether they would place in the hands of Congress or of their state legislatures the fundamental, elemental, inalienable rights which every American citizen now enjoys—the inalienable rights proclaimed in the Declaration of Independence—an overwhelming vote would be cast against any such change. Indeed, support for this conviction may be found in the recent experience of Australia, that hotbed of radicalism. An attempt by constitutional amendment to curtail the power of the judiciary in labor controversies and to confer upon the Australian parliament all power necessary to deal with labor matters was there the subject of a referendum and met with a decisive defeat at the polls. Are we likely to be less conservative than the Australians, or to be less mindful of the necessity for wise constitutional guaranties and restraints?

The truth is that our constitutions, national and state, do not stand in the way of any fair and just exercise of what is called the police power, or of measures for social progress or social justice, and that they do not prevent reasonable and just regulations tending to secure the health and promote the welfare of the community at large, or the enactment of proper and reasonable factory laws or proper and reasonable workmen's compensation acts. The main source of trouble is that the statutes which the courts are compelled to refuse to enforce are very often hastily and crudely drawn, and are often inherently unreasonable and unjust.

But, even if this be not so; even if the people, after full statement of the facts and thorough explanation of the effect of the change, upon mature consideration desire to vest greater power in our legislatures, or to curtail the power of the courts, the means are within their reach. In New York and in other states, the Constitution can be easily amended within two years.

It has been repeatedly asserted that the Constitution of the United States has become practically unamendable, when as a matter of fact its amendment does not involve any greater difficulties than were intended or than would seem reasonably necessary, or than would be provided if we were now framing a new national constitution. The prescribed machinery of a vote by two-thirds of both houses of Congress and ratification by three-fourths of the states simply compels deliberation and prevents hasty and unconsidered action. If the people of the country really desire a particular amendment to the Constitution of the United States, it ought to be readily obtainable within less than two years.

Thus, the first ten amendments were proposed by Congress in September, 1789, and were adopted in those days of slow travel and difficult communication by eight states within six months and by the requisite three-fourths within two years. The twelfth amendment, proposed in 1803, was ratified in nine months. The thirteenth amendment, proposed by Congress in 1865, was ratified by the legislatures of twenty-seven out of the then thirty-six states within ten months; and the fifteenth amendment, the latest, proposed in February, 1869, was ratified by twenty-nine out of the thirty-seven states within one year. The delay in the adoption of the proposed sixteenth amendment authorizing Congress to levy an income tax is due wholly to the fact that there is a serious difference of opinion as to whether or not this power should be conferred, although the advocates of the amendment confidently proclaimed the existence of an almost universal desire on the part of the people for such an amendment to the Constitution.[22]

One of the most insidious suggestions that can possibly be made to the people at large is that there is an insurmountable difficulty in securing amendments to our constitutions, just as misleading and dangerous as it is for them to be told that their desires are being thwarted by the judiciary and that they must accomplish reforms either by coercing the courts or by undermining the foundations of their constitutions. The future contentment of the people requires that they shall feel that the governments, state and federal, are their governments, that they themselves are ultimately the sovereign power, and that they are at liberty to amend the organic law from time to time as their mature and deliberate judgment shall deem necessary or desirable. All that the conservatives can ask or do ask is that the people shall act deliberately and under circumstances calculated to afford time and opportunity for full explanation and a full understanding of the scope and tendency of the proposed changes, to the end that errors may be discovered and exposed, that theorizing, sentimentalism, clamor and prejudice may exhaust themselves, and that the sober second thought of every part of the country may be asserted. If it be then determined to amend our constitutions, even to the extent of placing life, liberty and property at the unrestrained discretion and mercy of our legislators, the will of the sovereign people will have to be obeyed. Let us hope and pray, however, that when amendments are adopted, they will be conservative and wise, that the rights of the minority as against the majority will not be heedlessly sacrificed for the temporary advantage of one class over another, and that it will be appreciated that individual liberty should be the vital concern of every man, rich or poor, as being essential to the perpetuation of the institutions which we cherish as peculiarly and preeminently American. Let us especially try to avoid permitting any class to make use of constitutional amendments or of statutory enactments for its own special purposes. Let us, whilst meeting in full sympathy, generosity and charity the legitimate demands of the laboring classes and of the poor and humble, nevertheless keep our eyes open to prevent any such vicious results as would arise from constitutional or statutory provisions framed nominally for the benefit of labor but really for the purpose of serving the interests of a particular class against another, as we have seen was the case in the New York tenement-house legislation of 1884. In the meantime, pending such amendments in the due, orderly and reasonable course prescribed by our constitutions, let us be faithful and devoted to our constitutional system, which for more than a century has carried us through every storm and so often "in spite of false lights on the shore." Let us also be truthful and fair and, if possible, temperate in our criticism of all public officials, whether legislative, executive, or judicial.

Finally, a word about the special duty of our profession. It is not the pulpit nor the press, but the law which reaches and touches every fibre of the whole fabric of life, which surrounds and guards every right of the individual, which grasps the greatest and the least of human affairs, and which comprehends the whole community and every human right. We lawyers, if worthy of our profession, are in duty bound not merely to defend constitutional guaranties before the courts for individual clients, but to teach the people in season and out of season to value and respect the constitutional rights of others and to respect and cherish the institutions which we have inherited. It is our duty to preach constitutional morality to the rich and to the poor, to all trades and to all professions, to all ranks and to all classes, in the cities and on the plains. It is for us to convince the members of every class that, in the long run, disregard of the fundamental rights of others would be in conflict with their own permanent welfare and happiness, and cannot be permitted if we are to remain a free people. What higher duty, what nobler task could engage us than to teach the value and sacredness of the ancient and honest principles of justice embodied in our constitutions, immortal as the eternal truths from which they derive their origin, and to preach to all classes the virtue of political justice and self-imposed political restraints, without which there can be no true constitutional morality.