Progressive Legislation, the Constitution, By the Editor Two specious and dangerous falla- Constitution, old, musty, and anticies are abroad in the land. One is quated, is a barrier, with the Supreme that the Constitution of the United Court all powerful." A lawyer of some States is an insuperable obstacle to the eminence, addressing a state bar assoenactment of progressive legislation ciation, lately remarked "In propordesigned for the betterment of social tion as the judges are removed from and industrial conditions, and should contact with the people, so we find their therefore be radically amended. The opinions adverse to the best interests of other is that the Supreme Court of the human welfare. Notably is this so United States, possessing the power to with the federal courts." The brilliant pass upon the constitutional validity of editor of "The New Republic" (March acts of Congress and (in some cases) 31, 1917), in speaking of a legislative of the state legislatures, is disposed to and administrative program which, he thwart the will of the people by with- thinks, will grow out of the vastly holding its sanction from laws of that changed conditions following the close character and designed for that pur- of the present great war, and which pose. For example, the author of a will involve "an ever-increasing scope recently published book called "The of governmental control over private New Democracy" affirms that "the business and over the standards of life greatest merit, and the greatest defect, and labor," and which "will call for a of the Constitution is that it has sur- thorough revision of many prevailing vived. It might be well if the Ameri- conceptions of property and private can people would recast their Constitu- liberty," declares that "this whole protion every generation." The Constitu- gram is imperiled so long as the Sution, he says, "is like an old rambling preme Court retains its present power mansion, which cannot be lighted, and over social legislation. There are only in the dark places of which our enemies two ways of avoiding it. Either the secrete themselves." It is "a stiff, un- appointments to the Supreme Court yielding, and formidable (because ven- must be frankly based upon the politierable) obstacle to a true democracy, cal and social outlook of the nominees, and a strong bulwark of plutocracy." or the Supreme Court must be shorn In the course of a political address not of its present power of upsetting social long ago in a western city it was said: legislation on the ground that it is in"We cannot accomplish much under consistent with due process. Can it be our government, which is clumsy and doubted that the latter is the safer and impossible, almost hopeless. Under it sounder course?" we cannot pass any law of consequence interfering with vested rights. The Now the purpose of this paper is to refute these two intimately connected and entirely false notions by means of a very condensed review of some fifty or more decisions of the Supreme Court rendered within the last fifteen years, in which the constitutional validity of federal and state laws of the character mentioned has been sustained. No other argument will be presented. A mere recital of the decisions will suffice. They speak for themselves. But first it is necessary to remark that most of the laws for establishing social justice, benefiting the wageearners, preventing fraud, and other wise furthering the progressive program, have been enacted under what is called the "police power." Courts have very seldom attempted a definition of this great power, because it is in its nature elusive and not to be confined within sharp boundaries. But what is important for our present purpose is to call attention to the great change in both the popular and the juridical conceptions of it. A generation ago it was understood to be limited to certain specific objects. Today it has no real limitations. As late as 1885, the general agreement of the courts was to the effect that the police power, in any strict and constitutional sense, was limited to the preservation or protection of three particular objects, the public safety, the public health, and the public morals. But in 1907, the Supreme Court declared that it may be exercised for the general well-being of the community, and that it embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations for the public health, morals, or safety. In the same year, in another case, Mr. Justice Har lan said: "Except as restrained by its own fundamental law or by the supreme law of the land, a state possesses all legislative power consistent with a republican form of government; therefore each state, when not thus restrained, and so far as this court is concerned, may by legislation provide not only for the health, morals, and safety of its people, but for the common good, as involved in the well-being, peace, happiness, and prosperity of the people." In 1911, the court said: "It may be said in a general way that the police power extends to all the great public needs. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare." And in this present year (1917) the court said: "While this court has refrained from any attempt to define with precision the limits of the police power, yet its disposition is to favor the validity of laws relating to matters completely within the territory of the state enacting them, and it so reluctantly disagrees with the local legislature, primarily the judge of the public welfare, especially when its action is approved by the highest court of the state whose people are directly concerned, that it will interfere with the action of such authority only when it is plain and palpable that it has no real or substantial relation to the public safety, health, morals, or to the general welfare." It seems difficult even to imagine a statute which should have no real or substantial relation to such broad objects as the "public convenience" or the "general welfare." But if this be true, it is not too much to affirm that the Supreme Court has removed all shackles from the police power. Next it is necessary to call attention to two decisions rendered by the Supreme Court before the period at which our review begins, because they are of fundamental importance and will help to explain much that follows. One is the case of Munn vs. Illinois, decided in 1876. The point decided was that proprietors of grain elevators which are declared by law to be public warehouses are among those whose business is "affected with a public interest,' so that the state may regulate their rates and charges. It has been said that this decision "signalized the recognition of collectivism, as distinguished from individualism, by the courts. It did not affect public health, safety, or morals, but involved a broad effectuation of the public good." At any rate, it laid the foundation for all legislative and municipal control over public utilities for the public benefit. The other case is that of Knowlton vs. Moore (1900). Here the court held that no constitutional objection to a graduated inheritance tax can be drawn from the provision of the Constitution that "taxes shall be uniform through out the United States." For the uni formity in taxation required by this clause is not an intrinsic or personal uniformity, but geographical only, and the phrase is synonymous with the expression "to operate generally throughout the United States." This decision opened the way for all progressive income and inheritance taxes. Coming now to the main object of this paper, we shall only remind the reader that cases turning upon questions of constitutional law which reach the United States Supreme Court are usually of considerable intrinsic importance, and of much greater importance in view of their far-reaching effects as precedents. Hence, almost invariably, they are thoroughly argued by eminent lawyers, the attack upon the statute under fire being directed from every conceivable angle and the defense being equally spirited. Moreover, they are very searchingly examined by all the justices before a deciFor the sake of sion is rendered. economizing space, we shall not give citations to the cases mentioned. But they are all in the possession of the writer, and will be cheerfully furnished to anyone who wishes to verify the accuracy of the statements here made. In 1903, the Supreme Court ruled that the federal Constitution is not infringed by the Kansas statute making it a criminal offense for a contractor for a public work to permit or require an employee to perform labor upon that work in excess of eight hours each day. And in the following year the constitutionality of the Sherman anti trust law was sustained, with what far reaching consequences it is not necessary here to relate. And states may also enact laws against monopolies and combinations in restraint of trade. without unwarrantably abridging the freedom of contract secured by the fourteenth amendment, as was decided in 1905 in the case of the Kansas statute on that subject. In 1906, the court found nothing unconstitutional in the statute of North Carolina, then recently enacted, to break up and punish dealing in "futures" and the business of "bucket shops." In 1908, there is a decision that rights under the federal Constitution are not infringed by the limitation of the hours of labor of women employed in laundries to ten. hours a day which is made by the statute in Oregon. And in the next year the court sustained the validity of the Elkins act, under which the commission by corporate officers, acting within the scope of their employment, of criminal violations of the provisions of that act against giving rebates is imputed to the corporation, and the corporation subjected to criminal prosecution therefor. In 1910, it was decided that a state has the right to protect its forest lands from depredation, and an act punishing the cutting of timber on state lands is valid under the police power and not unconstitutional, even though it imposes the penalty of double damages upon one whose trespass was casual and involuntary. In the same year, a decision was given that nothing in the federal Constitution denies to a state the right to enact a law for the registration and licensing of physicians, and a decision that the Michigan "sales-in-bulk" law, intended to prevent merchants from defrauding their creditors by selling out their out their whole stock in trade to one purchaser in a single transaction, is a valid exercise of the police power and does not deny due process of law or the equal protection of the laws. Important decisions were rendered in 1911. One concerned the Arkansas statute prescribing a minimum of three brakemen for freight trains of more than twenty-five cars, regardless of any equipment with automatic couplers or air brakes. This was held not forbidden by the provisions of the Constitution. It laid the foundation for all subsequent "full crew" laws. Another statute of the same state abolished the "fellow servant" rule as to corporations operating railroads within the state; and it was held that this does not deny to such a corporation the equal protection of the laws because the statute does not also apply to individual employers. In the same year the court sustained the act of Congress by which an interstate carrier, voluntarily receiving property for transportation from a point in one state to a point in another state, is made liable to the holder of the bill of lading for a loss anywhere on the route, with a right of recovery over against the carrier actually causing the loss. And a ruling was made that the levy and collection under a state statute (such as those in Kansas, Nebraska, and Oklahoma) from every bank existing under the state laws of an assessment based upon average daily deposits, for the purpose of creating a depositors' guaranty fund, to secure the full repayment of deposits in case any such bank becomes insolvent, is a valid exercise of the police power and not contrary to the Constitution. In 1912, against attacks on various constitutional grounds, the court upheld the federal employers' liability act, which regulates the relations of interstate railway carriers and their employees, by abrogating the "fellow servant" rule, extending the carrier's liability to cases of death, and restricting the defenses of contributory negligence and assumption of risk. The same year it was decided that there is no ground to complain of a deprivation of rights under the national Constitution because a state law (Mississippi) requires railroads to settle claims for lost or damaged freight, shipped over their lines between two points within the state, within sixty days after notice of claim, under a penalty. In 1913, a decision was given that the West Virginia statute fixing the maximum fare for passengers on railroads at two cents per mile is not open to objection on constitutional grounds. Likewise it was ruled, in that year, that requiring entries in coal mines, where drivers are required to drive with mine cars, to have an unobstructed space of at least two feet in width outside the rails ( as is done by a statute of Indiana) is a valid exercise of the police power; and so also is a state law prohibiting the employment of children under sixteen years of age in various hazardous occupations. In the interests of the public health, it was also decided that a municipal ordinance is not open to constitutional objection which forbids the bringing into the city and the sale of milk, unless from tuberculin-tested cows, under penalty of the confiscation and immediate destruction of the milk; and the court refused to interfere on constitutional grounds with the Chicago ordinance fixing the weight of the standard loaf of bread. In this year also, the Hepburn act, which makes it unlawful for any railroad company to transport in interstate commerce any article which it may own or in which it may have an interest, except such as may be necessary for use in its business (intended to break up the practice of railroad companies owning or leasing coal mines and hauling their own product), was declared to be a valid exercise of the congressional power to regulate commerce. In another case decided in 1913, the court had under consideration the so-called Mann "white slave act" of Congress, forbidding the transportation in interstate commerce of women and girls for immoral purposes. It was urged that the attempt to link this statute with the commerce power was nothing but a subterfuge, that it was really an attempt to interfere with the police power of the states in respect to regulating the morals of their citizens, and that it was an invasion of the reserved powers of the states, contrary to the tenth amendment, and not within the competence of Congress. But the court unanimously sustained the act. The following year, 1914, witnessed no less than ten important decisions of the kind under review. As against various allegations of unconstitutionality, the court had no hesitation in sustaining the New York law requiring railway companies to pay their employees at least twice a month, and the Virginia statute which forbids employers engaged in mining or manufacturing to pay the wages of their workmen in "store orders" or in any kind of orders not purporting on their face to be redeemable in lawful money, and the Massachusetts act prohibiting the employment of women for more than ten hours in any one day, or more than |