第12章

Even as late as 1905, the decision in Lochner v.N.Y., 198 U.S.45, still spoke in terms untouched by the light of the new spirit.It is the dissenting opinion of Justice Holmes, which men will turn to in the future as the beginning of an era.44 In the instance, it was the voice of a minority.In principle, it has become the voice of a new dispensation, which has written itself into law."The Fourteenth Amendment does not enact Mr.Herbert Spencer's Social Statics." 45 "A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state, or of laissez faire." 46 "The word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law." 47 That is the conception of liberty which is dominant today.48 It has its critics even yet, 49 but its dominance is, I think, assured.No doubt, there will at times be difference of opinion when a conception so delicate is applied to varying conditions.50 At times, indeed, the conditions themselves are imperfectly disclosed and inadequately known.Many and insidious are the agencies by which opinion is poisoned at its sources.Courts have often been led into error in passing upon the validity of a statute, not from misunderstanding of the law, but from misunderstanding of the facts.This happened in New York.A statute forbidding night work for women was declared arbitrary and void in 1907.51 In 1915, with fuller knowledge of the investigations of social workers, a like statute was held to be reasonable and valid.52 Courts know today that statutes are to be viewed, not in isolation or in vacuo , as pronouncements of abstract principles for the guidance of an ideal community, but in the setting and the framework of present-day conditions, as revealed by the labors of economists and students of the social sciences in our own country and abroad.53 The same fluid and dynamic conception which underlies the modern notion of liberty, as secured to the individual by the constitutional immunity, must also underlie the cognate notion of equality.No state shall deny to any person within its jurisdiction "the equal protection of the laws." 54 Restrictions, viewed narrowly, may seem to foster inequality.The same restrictions, when viewed broadly, may be seen "to be necessary in the long run in order to establish the equality of position between the parties in which liberty of contract begins." 55 Charmont in "La Renaissance du droit naturel," 56 gives neat expression to the same thought: "On tend à considerer qu'il n'y a pas de contrat respectable si les parties n'ont pas ét&eactue;placées dans les conditions non seulement de liberté, mais d'égalité.Si l'un des contractants est sans abri, sans ressources, condamné à subir les exigences de l'autre, la libertéde fait est supprimée!" 57

From all this, it results that the content of constitutional immunities is not constant, but varies from age to age.

"The needs of successive generations may make restrictions imperative today, which were vain and capricious to the vision of times past." 58 "We must never forget," in Marshalls mighty phrase, "that it is a constitution we are expounding." 59 Statutes are designed to meet the fugitive exigencies of the hour.Amendment is easy as the exigencies change.In such cases, the meaning, once construed, tends legitimately to stereotype itself in the form first cast.A constitution states or ought to state not rules for the passing hour, but principles for an expanding future.In so far as it deviates from that standard, and descends into details and particulars, it loses its flexibility, the scope of interpretation contracts, the meaning hardens.While it is true to its function, it maintains its power of adaptation, its suppleness, its play.I think it is interesting to note that even in the interpretation of ordinary statutes, there are jurists, at any rate abroad, who maintain that the meaning of today is not always the meaning of tomorrow."The President of the highest French Court, M.

Ballot-Beaupré, ex plained, a few years ago, that the provisions of the Napoleonic legislation had been adapted to modern conditions by a judicial interpretation in ' le sens évolutif.' 'We do not inquire,' he said, 'what the legislator willed a century ago, but what he would have willed if he had known what our present conditions would be.'" 60 So Kohler: "It follows from all this that the interpretation of a statute must by no means of necessity remain the same forever.To speak of an exclusively correct interpretation, one which would be the true meaning of the statute from the beginning to the end of its days, is altogether erroneous." 61 I think the instances must be rare, if any can be found at all, in which this method of interpretation has been applied in English or American law to ordinary legislation.I have no doubt that it has been applied in the past and with increasing frequency will be applied in the future, to fix the scope and meaning of the broad precepts and immunities in state and national constitutions.I see no reason why it may not be applied to statutes framed upon lines similarly general, if any such there are.We are to read them, whether the result be contraction or expansion, in " le sens évolutif." 62Apposite illustrations may be found in recent statutes and decisions.