630 PRIVATE LAW 



the judicial methods of reexamining the justice of legislation are 

 in their turn far from satisfactory. It is true that the two adverse 

 interests are represented by counsel, and the courts are supposed 

 to decide according to the preponderance of evidence and of rea- 

 soning; but the facts are not like those in an ordinary lawsuit, 

 since they cover a wide range of social and economic phenomena 

 and experiences, for the ascertainment and estimate of which the 

 machinery of the courts is quite unsuited; the arguments employed 

 by the courts for condemning a policy are in many cases hardly 

 less crude than those that may have moved the legislature in adopt- 

 ing it. 



In the second place, judicial relief places the courts in an attitude 

 of antagonism to the legislature which under any system of govern- 

 ment, but especially in a democracy, is unfortunate. The courts in 

 enforcing theories of economic liberty and equality after all pass 

 upon questions of policy and not upon questions of law. This 

 function finds no precedent in other countries and it is novel even in 

 this; it remains to be seen whether the courts can long continue 

 to exercise it without suffering in reputation for impartiality, and 

 thereby in popular confidence. 



Finally, the exercise of judicial control is not prompt or certain. 

 It is left entirely to private initiative to attack unconstitutional 

 legislation. While ordinarily the interests of the parties adversely 

 affected by the legislation will lead to timely action, instances are 

 not wanting where years and even decades passed before a statute 

 was declared unconstitutional. It is obvious that, for example, in 

 the matter of the validity of acts authorizing municipal bond issues, 

 every consideration of justice and good faith requires that the con- 

 stitutionality of an enabling act should be settled before and not 

 after the bonds are issued. 



Notwithstanding these objections, the principle of judicial con- 

 trol of legislation is so firmly intrenched in our whole constitutional 

 system that it is not apt to be dislodged, nor does it show any signs 

 of weakening. There are even some tendencies apparently running 

 counter to it that will ultimately work in its favor. It has repeat- 

 edly happened that a decision denying the exercise of some judicial 

 power was followed by a constitutional amendment granting the 

 power denied. 1 In extreme cases these enabling clauses will them- 

 selves be invalid under the Fourteenth Amendment, but even as 

 valid grants of power they are as to scope and content subject to 

 the interpretation of the courts. A number of large and positive 

 policies defined in the constitutions will be preferable to the wholly 



1 Eight-hour law for miners; Re Morgan, 26 Colo. 415; constitutional amend- 

 ment, 1902. Indeterminate sentence law; People v. Cummings, 88 Mich. 249; 

 constitutional amendment, 1902. Conditions of employment by public con- 

 tractors, People v. Coler, 166 N. Y. 1; constitutional amendment, 1905. 



