Yet the right of the legislature to procure for them that liberty was denied by the courts on the ground of a purely theoretical liberty which no one, or almost no one, wanted to exercise; a liberty which simply gave the owners of the bake-shops the right to make big profits through the overwork of their employees.

Similarly, the New York State Court of Appeals declared unconstitutional a State law prohibiting the making of cigars in tenements, on the ground that this law interfered with personal liberty and private property; it forced the worker "from his home and its hallowed associations and beneficent influences!" The situation was that the employers were saving money through being able to go without a factory, while the workers were injuring their health through overlong hours of working-made necessary by the unregulated competition and very low pay per hour; little children, aged and sick people were kept at work, to add to the family income, and the health of both workers and the consumers was seriously endangered. It is universally admitted by students of social conditions that tenement-industries are a menace to the community. And these industries received a new lease of life by this widely advertised decision of the Court. Mrs. Florence Kelley, one of the ablest of our social workers, wrote in 1905, that if the new State law had been upheld instead of being annulled, "it is safe to assert that the odious system of tenement manufacture would long ago have perished in every trade in every city in the Republic."

The Illinois Supreme Court, in 1886 and subsequent years, annulled acts of the State legislature requiring mine-owners to weigh the coal mined and pay the miners on the basis of such weight. In 1892 and 1904, it held as void legislative acts regulating the keeping

of truck stores by the owners of coal mines and factories. In 1900, it anulled a law prohibiting the use of the American flag for advertising purposes; in 1901, an act prohibiting more than six persons from sleeping in one room in a lodging-house; in 1906, an act requiring owners of mines to provide a washroom at the top of the mine for the use of the miners; in 1909, an act regulating the practice of assigning future wages as security for borrowed money by requiring the assignment to be signed by the wife of a married man and recorded.

These cases, cited out of a great number, make it clear that the passing of desirable reform measures has often been blocked by the Courts. And a very great number of other reforms have been postponed, or are still impossible of achievement, because it is recognized that the courts would annul them. Our constitutions are so difficult of amendment that this veto power of the courts is usually decisive. We are the only great nation that handicaps progressive legislation in this way. And it is generally conceded that we are behind most of the more civilized nations in our social-welfare legislation.

In particular, the cause of labor has often suffered from the exercise of judicial interpretation. It is scarcely to be wondered at that delegates of labor conventions often declare that they have lost all hope in legal procedure and want to try lawless methods for ameliorating the lot of the laboring classes. The Fourteenth Amendment to the Federal Constitution, which declares that property must not be taken without due process of law, has been used over and over again by judges to justify the annulment of laws passed by legislatures and desired by the people. The result is that property rights have been given in this

country a more protected status than anywhere else in the world, and often ranked above what we call human rights. So much use has been made of that Fourteenth Amendment that it has been specifically proposed that whenever an act is passed by two different sessions of a legislature, and approved by the electorate upon a referendum, it shall be held not to infringe the "life, liberty, and property" clause in that amendment.

The reasons for this obstructionist attitude of some of our courts must be sought in the training that judges receive. The law schools have trained their students rather in a legalist, backward-looking temper, than in a constructive, forward-looking spirit. One of the judges of the Federal Supreme Court has written, "The training of lawyers is a training in logic... The logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. . . To measure them justly needs not only the amplest powers of a judge and a training which the practice of the law does not insure, but also a freedom from prepossessions which is very hard to attain. It seems to me desirable that the work should be done with express recognition of its nature."

In short, the courts have been taking upon themselves what is not merely an interpretative but a political function. But they are made up not of representatives of all classes, but solely of lawyers, who almost inevitably come to have the property point of

view. Their work lies largely in the sphere of the enforcement of property interests. They do not consciously mean to be servants of organized property interests, but their unconscious prejudices make them often its ready tools.

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To realize to what extent the supposedly interpretative function of the courts is actually determinative, we have but to read the opinions of the dissenting judges, which are usually the most drastic criticisms of the majority decisions, and show how far the social philosophy of the judges colors their arguments. legal foundation can be brought up for almost any decision, through the selection of the precedents to be followed. A student of the law has recently declared that "there are so many principles and precedents running in different directions, that a judge can generally find some principle, precedent, or construction to justify in legal form the conclusion he has arrived at on the facts. . . With the courts of forty-six States and several English-speaking jurisdictions handing down decisions at the rate of several hundred bulky volumes every year, it is not difficult to find authority and reason for almost any practicable view; and even when certain precedents seem to stand in the way of the judgment the court would like to render, these can often be distinguished from the case at bar by some slight difference, or perhaps quite marked and vital difference in the facts and circumstances."

For example, the majority of the Massachusetts Supreme Court recently stated the opinion that the legislature could not legally give authority to the cities of the State to establish municipal coal and wood yards, for the purpose of providing their citizens with fuel at a reasonable price. The ground for this decision lay in the fact that the judges thought it

would be an unwise thing for municipalities to go into such business and that it would open the way for further "socialistic" enterprises. But Mr. Justice Holmes (now a member of the Federal Supreme Court) dissented vigorously from this view, declaring that "when money is taken to enable a public body to offer to the public without discrimination an article of general necessity, the purpose is not less public when that article is wood or coal than when it is water or gas or electricity or education, to say nothing of cases like the support of paupers, or the taking of land for railroads or public markets.”

In this case the fact that a majority of the judges were unfavorably disposed, owing to their social class or education or thought, to the extension of municipal activity, led them to block legislation which a majority of Mr. Holmes' type would have passed as legitimate. It can clearly be seen that the political and social temper of our judges may well be a more serious matter than that of our legislators and executives; and, in our system, the judges have the last word. Even though there be a large popular majority in favor of a law, and a majority in the Congress or State legislature, and even though the welfare of the people, as well as their will, is embodied in the law, the courts can keep it off the statute-books.

Do we wish to allow the courts this right to obstruct the will of the people? Certainly, if we allow them to retain it, we must be free to criticize their action when we disapprove it. Time has shown that not a few court decisions have been undesirable. Our greatest American, Abraham Lincoln, felt free to condemn the action of the Supreme Court of the United States. Of the Dred Scott decision he said, "we think this decision erroneous. We know that