TEE STRUGGLE FOR EQUALITY 249 



IV 



In interpreting the " specific clauses " of our organic law, the courts 

 experience comparatively little difficulty, but in interpreting the "gen- 

 eral clauses " there is a fair chance that they may go astray. The con- 

 stitutional prohibition that no state shall grant letters of marque and 

 reprisal, coin money, etc., is not easily misunderstood, but the words of 

 the fourteenth amendment which prohibit the states from depriving any 

 one of property without "due process of law" has a good deal of flexi- 

 bility of meaning. In a general way, it means that no one shall be 

 deprived of property without a hearing or without compensation unless 

 "the general interests of the community" demand it. The interpre- 

 tation of such a clause necessarily involves the exercise of legislative 

 discretion. 



Under the constitutional system as developed in this country the political 

 philosophy of the judges is a matter of vital importance. They are policy de- 

 termining officers, because they have power to declare null and void "on prin- 

 ciples 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 

 law making bodies, determining in the end what legislative policies shall or 

 shall not be adopted. . . . There are under this clause no fixed or definite stand- 

 ards 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. 25 



What is necessary to the public health, safety and morals is a ques- 

 tion which should be determined in the light of the particular facts and 

 circumstances existing at a given time and place. These are matters 

 which " the prevailing morality or the strong and preponderant opinion " 

 of society should properly control. 



A tenement-house act might seem absurd in Arizona, a statute regulating 

 the grazing of sheep might seem absurd in Greater New York. ... A law regu- 

 lating the hours of labor in canneries would have been laughed out of the legis- 

 lature or the courts seventy years ago, for the housewife did her own canning in 

 the wholesome conditions of her own kitchen; yet such a statute may be very 

 necessary under the conditions now obtaining, for example, in the fruit-growing 

 regions of central New York.26 



A laissez-faire philosophy may have answered the needs of our grand- 

 parents, but it has little place amid the conditions of modern life. The 

 political philosophy which holds that "that country is governed best 

 which is governed least " may have been all well enough on the frontier, 

 but it is out of date in an age of cities. When man's relations with his 

 fellows were few and far between, comparatively few restraints upon 

 the individual answered every purpose, but in the crowded center and 

 in a time when the railway, the telephone and the telegraph have vastly 



25 W. F. Dodd, op. cit., pp. 3-4 26 William L. Eansom, op. cit., p. 135. 



