interests of society. The individual, whether with or without property, is the object of the new social and industrial legislation.

Our legal philosophy and our whole system of constitutional guaranties were developed to fit conditions when property was the most general interest of the community, and the highly individualistic philosophy of our law was one not unadapted to the conditions of this country in the early days. For at least a generation, however, we have been living in a state of social and industrial development to which the earlier individualistic philosophy does not fit itself, and the adjustment of legal principles and legal philosophy to these new conditions is a slow one. Our industrial and social organization has passed from a highly individualistic into a highly organized and centralized stage. Toward this development of industry our courts have on the whole taken a liberal attitude, because the policy of " hands off" constituted merely an application of the prevailing legal philosophy. But our present social and industrial organization has made necessary new legislation to protect individual rights which under earlier conditions did not need legal protection. And toward such legislation our courts have not been friendly, for legislation of this character does not harmonize with the individualistic philosophy which they still profess. Legal principles cannot change rapidly, and the strong conservatism of bench and bar makes a change slower than it should be.

Under the constitutional system as developed in this country the political philosophy of the judges is a matter of vital importance. They are policy-determining officers, because they have power to declare null and void, "on principles of constitutional law which are scarcely more than general moral precepts," laws enacted by the legislative authority. It is this function of declaring laws unconstitutional, especially as violative of broad and undefinable guaranties that "no one shall be deprived of life, liberty or property without due process of law," which has made the courts in this country essentially lawmaking bodies, determining in the end what legislative policies shall or shall not be adopted. The judicial control which at times defeats the purpose of legislation is not always exercised by declaring laws invalid, but often also by a narrow and illiberal interpretation and application of laws admittedly valid.

The exercise of policy-determining functions by the courts causes no difficulty so long as judicial action is in accord with sober popular sentiment on social and industrial questions. But the power of the courts in recent years to declare laws invalid as depriving persons of "due process of law" has been exercised in direct opposition to growing popular sentiment and to present social and industrial conditions; and the "due process of law" clause, meaning what the judges in any particular case may decide that it means, is, as now interpreted, simply a means of vesting judges with power to declare unconstitutional any laws of which they disapprove. There are under this clause no fixed or definite standards for determining what laws are constitutional and what are unconstitutional. Judges are thus exercising political functions, without corresponding political responsibility; and inasmuch as such functions are being exercised in a manner opposed to public sentiment, popular criticism of the courts is a necessary consequence.

The fourteenth amendment placed in the federal Constitution in 1868 a provision that "no state shall deprive any person of life, liberty or property without due process of law nor deny to any person within its jurisdiction the equal protection of the laws." The fifth amendment had placed in the federal Constitution in 1790 a "due process of law" limitation upon the federal government; and most of the states had put similar provisions into their constitutions before 1868. These provisions, however, were little used before 1850. But when, because of the growing complexity of social and industrial organization in this country, the legislatures began to enact laws restraining uses of property which had previously been regarded as not improper, the courts interfered. Many of the decisions annulling new social and industrial legislation proceeded upon the theory that the fourteenth amendment had enacted Herbert Spencer's Social Statics, and took a position which made it impossible to adopt new remedies to meet new evils. The conflict between legal doctrine and social progress thus came, in the main, as it still comes, from the conscientious application to new conditions of a social and legal philosophy which does not conform to present facts; and the

courts cannot be brought to see the necessity of new legislation because of the persistence of an antiquated philosophy.

From what has been said above, however, it should not be understood that all courts have been equally illiberal, or that there has been no improvement in the judicial attitude toward legislation. In recent years a number of courts have shown a distinct liberalizing tendency. The supreme courts of Wisconsin and Kansas have manifested a desire to test legislation by the present needs of the community, and there has been a similar tendency in Michigan, Illinois and other states. Except for the rather unfortunate lapse in the New York bake-shop case,' the Supreme Court of the United States has in the main taken a liberal attitude toward legislation aimed to meet new social and industrial needs. Yet there remains the fact that perhaps the greater number of our state courts are illiberal and, under our present constitutional and judicial organization, are able to block needed social and industrial legislation.

It is in large part against this attitude of the courts that the movement for the recall of judges is directed. Of the theoretical objections to which this plan is open, many may be met by a carefully framed recall provision, and the principle of the recall has aroused, on the whole, more heat than it would seem to justify. If the recall were adopted as to judges its use would probably be infrequent and its influence slight. It is doubtful, however, whether the recall will accomplish the end aimed at by its advocates; for this end, it may be suggested, is in reality not so much the occasional removal of an unsatisfactory judge as the bringing of the courts generally to a more liberal attitude in passing upon and in applying new social and industrial legislation.

The most serious difficulty which we face today is that occasioned by our dual form of government, in which two series of courts are applying the principles of the federal Constitution. Both the federal and state constitutions, as we have seen, have "due process of law" clauses, framed in almost identical terms, and in declaring a law unconstitutional a state court may base

Lochner v. New York, 198 U. S. 45 (1905).

its decision on both the state and federal constitutional provisions or on either.

The state courts are the final judicial interpreters of their state constitutions, and "due process of law" in any state constitution means what the highest court of that particular state interprets it to mean. Under these conditions it is not surprising to find that "due process" often means one thing in one state and another thing in some other state, and that it means something still different as interpreted by the Supreme Court of the United States. Under state constitutional provisions identical with or substantially similar to those in the fourteenth amendment, state courts have frequently annulled legislation, when similar legislation has been upheld by the Supreme Court of the United States.

If the highest court of a state declares a law unconstitutional as in violation of the "due process of law" clause of the state constitution only, such a decision may be overcome by a constitutional amendment inserting the proposed legislation or an authorization for the proposed legislation into the state constitution; and state judicial decisions may be and are being overcome in this way in states where the methods of amending the constitution are not so cumbersome as to be unworkable. when, in 1899, an eight-hour day for mines and smelters was held to be repugnant to the Colorado constitution,' although a similar law had been upheld the year before by the United States Supreme Court, the people of Colorado immediately inserted in their constitution the legislation which had been annulled and thus overruled the state supreme court.

So

But most decisions of state courts declaring laws unconstitutional are based upon federal grounds or upon both state and federal grounds. If a state law is declared unconstitutional upon both state and federal grounds, the state constitutional objection may perhaps be overcome by a state constitutional amendment. But how as to the state decision in so far as it is based on federal grounds? At present a state decision declaring a state law invalid on federal grounds is final and con

In re Morgan, 26 Colo. 415.

clusive on the question at issue. Under federal law the state court is the final interpreter of the federal Constitution within its territory, so long as it uses its power to annul rather than to sustain state legislation.

This situation is due to a limitation upon appeal to the Supreme Court of the United States which has existed since the Judiciary Act of 1789. Under the provisions of section 237 of the federal Judicial Code, a final judgment of the highest state court, "where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of their validity," may be reviewed by the United States Supreme Court; but where a state court decides against the validity of its own state law on federal grounds there is now no appeal to the Supreme Court of the United States.

To take a concrete illustration: two years ago the New York Court of Appeals, in the case of Ives v. South Buffalo Railway Company,' declared the New York compulsory workmen's compensation law invalid as a violation of the "due process of law" clauses of both federal and state constitutions. Let us assume for the sake of this discussion that the decision is based on federal grounds alone. The South Buffalo Railway Company contends that the law violates the federal Constitution, and the decision of the state court is against the validity of the law, i. e. in favor of the railway company. Had the decision been against the railway company, i. e. in favor of the validity of the law, the company would have had a right of appeal to the United States Supreme Court, for a final settlement by that court of the question whether the law is a violation of the federal Constitution. Ives, who seeks compensation under the law, and the state, whose policy is involved, are equally interested in obtaining a final decision by the United States Supreme Court; but as to them the decision of the federal constitutional question by the state court is at present final and conclusive, for the decision has not been in favor of the state law but against its

1 201 N. Y. 271.