¹ Compare the cryptic remarks of Mr. Justice Cardozo in U.S. v. Constantino, 296 U.S. 287, at 299.

² For ample support, see Corwin, Edward S., The Twilight of the Supreme Court (1934)Google Scholar, and The Commerce Power vs. States' Rights (1936).

³ National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), at 41.

⁴ U.S. v. Butler, 297 U.S. 1, at 87.

⁵ 16 Report of the American Bar Association, p. 190.

⁶ Lloyd, H. D., “Story of a Great Monopoly,” Atlantic Monthly, March, 1881Google Scholar.

⁷ Reprinted in Turner, F. J., The Frontier in American History (1921), Chap. 1Google Scholar.

⁸ Lloyd, , Wealth Against Commonwealth (1894), p. 1Google Scholar.

⁹ Ibid., p. 2.

¹⁰ Ibid., p. 494.

¹¹ Ibid., p. 496.

¹² Ibid.

¹³ Ibid.

¹⁴ Knight, F. H., Ethics of Competition (1935), p. 291Google Scholar.

¹⁵ For a survey of such legislation, see Judson, F. N., “Liberty of Contract Under the Police Power,” 14 Report of the American Bar Association (1891), p. 231Google Scholar.

¹⁶ Ibid., p. 256.

¹⁷ Brown, H. B., “The Distribution of Property,” 16 Report of the American Bar Association (1893), p. 225Google Scholar.

¹⁸ Quoted in Lloyd, H. D., Wealth Against Commonwealth (1894), p. 495Google Scholar.

¹⁹ The Movement of Coercion, p. 5.

²⁰ Brown, op. cit., pp. 218–219.

²¹ Brewer, op. cit., at 5–7.

²² Ibid., pp. 8–9. Italics mine.

Brewer offered other reasons for judicial preëminence: “Somehow or other men always link the idea of justice with that of judge. It matters not that an arbitrator or commission may perform the same function, there is not the same respect for the office, nor the same feeling that justice only can be invoked to control the decision. … It is a good thing that this is so; that in the common thought the idea of justice goes hand in hand with that of judge. … I would have it always kept so. … ” (pp. 9–10). A somewhat different contemporaneous view of judicial competence and the effects of judicial supremacy is given by the conservative economist, R. T. Ely: “We have, to an extent unknown in any other country in the world, government by judges. What does this mean to the student of social legislation? It means a great deal, and the fact cannot be disguised. It means a force on the whole adverse to the interests of labor. … The only practicable remedy in the United States seems to be a broader, more liberal, and more thorough education of the lawyers who are our ruling class. At the present time, the training which our lawyers receive is as a rule woefully deficient and cannot entitle them as a whole to the rank of a liberal profession. The condition of the legal education in this country becomes apparent when it is stated that the politic and economic science implied and expressed in Blackstone's Commentaries on the Laws of England is still regarded as sound doctrine by at least nine American lawyers out of ten.” Economic Review, April, 1891.

²³ Brewer, op. cit., p. 10.

²⁴ Op. cit., at p. 232. Compare with Herbert Spencer's Man vs. the State, particularly the chapter entitled “The Sins of Legislators.” Cary, J. W., 15 Report of American Bar Association (1892), p. 245Google Scholar, reached much the same conclusion and urged broader judicial review.

²⁵ Judson, op. cit., p. 236, supra, note 15.

²⁶ Ibid., p. 259.

²⁷ 14 Report of the American Bar Association (1892) p. 244Google Scholar.

²⁸ Op. cit., p. 1.

²⁹ Social Statics (1851), p. 322Google Scholar.

³⁰ Man vs. the State (1884), p. 16Google Scholar.

³¹ Lochner v. New York, 198 U.S. 45, at 75.

³² Ibid., p. 76.

³³ Communication of Kelley, Florence, The Survey, May 13, 1916Google Scholar.

³⁴ State v. Haun, 61 Kan. 146, 162 (1899). For a good discussion of similar cases, see Pound, Roscoe, “The End of Law as Developed in Legal Rules and Doctrines,” 27 Harv. Law Rev., 195 (1914)CrossRefGoogle Scholar.

³⁵ H. B. Brown, op. cit., at 220.

³⁶ Yellen, Samuel, American Labor Struggles (1936), pp. 101–135Google Scholar; and see also Report on the Chicago Strike of June–July, 1894, by the United States Strike Commission, 53d Cong., 3d Sess., Ex. Doc. No. 7. For a brief and balanced treatment of the whole period, see Sullivan, Mark, Our Times, pp. 254–371Google Scholar.

³⁷ Labor Troubles in the Anthracite Regions of Pennsylvania, 1887–1888, House Reports, 50th Cong., 2d Sess., Vol. IV, p. lxxix.

³⁸ The Workers, an Experiment in Reality; The West (1898).

³⁹ U.S. v. E. C. Knight, 156 U.S. 1 (1895).

⁴⁰ Ibid., at 9.

⁴¹ Ibid., at 12. Seven years previously, John Randolph Tucker had developed this construction of the commerce clause. See “Congressional Power over Interstate Commerce,” 11 Report of American Bar Assoc., p. 247Google Scholar, especially p. 258 et seq.

⁴² Ibid., at 17.

⁴³ U.S. v. Trans-Missouri Freight Assoc., 166 U.S. 290 (1897).

⁴⁴ 221 U.S. 1 (1910), at 88.

^44a Ibid., at 99.

⁴⁵ 45 Cong. Record, 382 (1910)Google Scholar. Quoted in Jackson, R. H. and Dumbauld, E., “Monopolies and the Courts,” 86 University of Pennsylvania Law Rev. (1938), p. 245, noteGoogle Scholar.

⁴⁶ Op. cit. (supra, note 15), p. 253. In the same year (1891), Judson anticipated that the Court might expand its own power under this statute. “The so-called anti-trust laws enacted by a number of states in the past few years constitute another instance of the exercise of police power abridging the liberty of private contract. … Under the modern rule regarding such contracts, an interesting question would be presented as to the conclusiveness of the legislative determination of the necessity for such enactments in protecting the people against injurious monopolies.” Pp. 252–253.

⁴⁷ Loewe v. Lawlor, 208 U.S. 274 (1908).

⁴⁸ Pollock v. Farmers' Loan and Trust Co., 157 U.S. 429 (1895), and 158 U.S. 601 (1895).

⁴⁹ Springer v. U.S., 102 U.S. 586.

⁵⁰ 157 U.S. 429, at 607.

⁵¹ 158 U.S. 601, at 706.

⁵² Ibid., at 685.

⁵³ Ibid., at 695.

⁵⁴ 157 U.S. 429 (1895), at 639. Italics mine.

⁵⁵ Ibid., at 652. Italics mine.

⁵⁶ Language of Justice Brown, 158 U.S. 601, at 695.

⁵⁷ Language of Justice Field, 157 U.S. 429, at 607.

⁵⁸ 62nd Cong., 3rd sess., Sen. Doc., Vol. XXV, No. 1106.

⁵⁹ 158 U.S. 564 (1895).

⁶⁰ 257 U.S. 312 (1921), at 366–368.

⁶¹ See, in this connection, my article “Labor and Judicial Interpretation,” 184 Annals of Amer. Acad. (March, 1936), p. 115ffGoogle Scholar.

⁶² 207 U.S. 463.

⁶³ Adair v. U.S., 208 U.S. 161.

⁶⁴ Ibid., at 175.

⁶⁵ Ibid., at 191–192.

⁶⁶ Wall. 36 (1873), at 73.

⁶⁷ 127 U.S. 678 (1888).

⁶⁸ Ibid., at 685–686.

⁶⁹ Atkin v. Kansas, 191 U.S. 207 (1903), at 224.

⁷⁰ 123 U.S. 623 (1887), at 661.

⁷¹ Ibid., at 646. Italics mine.

⁷² Quoted in Kendrick, B. B., The Journal of the Joint Committee of Fifteen on Reconstruction, 39th Cong., 1865–1867 (1914), pp. 32, 34Google Scholar. Conning represented the defendants in San Mateo County v. Southern Pac. R. R., 116 U.S. 138 (1885), which was pending before the Supreme Court from the fall of 1882 to the spring of 1885. Conkling's construction of the word “person” in the Fourteenth Amendment as comprehending corporations was accepted in Santa Clara County v. The Southern Pac. R.R., 118 U.S. 394 (1886); Pembina Mining Co. v. Pa., 125 U.S. 181 (1888); Minn, and St. Louis R.R. Co. v. Beckwith, 129 U.S. 26 (1889).

⁷³ Justice Field, dissenting in the Munn case, gave this definition of liberty: It means something more than “mere freedom from physical restraint or the bounds of a prison. It means freedom to go where one may choose, and to act in such manner, not inconsistent with the equal rights of others, as his judgment may dictate for the promotion of happiness; that is, to pursue such callings and avocations as may be most suitable to develop his capacities, and give them their highest enjoyment.” 94 U.S. 113 (1876), at 142. In Allgeyer v. Louisiana, 165 U.S. 578, where the Court set aside a state statute regulating insurance companies as in violation of the due process clause of the Fourteenth Amendment, Justice Peckham defines liberty thus: “The liberty mentioned in that amendment means not only the right of a citizen to be free from mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood or avocation, and for that purpose to enter into all contracts whieh may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.” P. 589.

⁷⁴ Lochner v. N.Y., 198 U.S. 45 (1905), at 57.

⁷⁵ Ibid., at 63.

⁷⁶ Munn v. Illinois, 94 U.S. 113 (1876).

⁷⁷ Ibid., at 133.

⁷⁸ Ibid., at 132.

⁷⁹ Ibid., at 134.

⁸⁰ Ibid., at 136. The Munn case was also subject to unusual deliberation in the state court, being argued twice. When first considered, it was agreed that the act prescribing maximum rates for the storage of grain was unconstitutional. Soon afterwards, two members of the Court retired and successors were elected. Thereupon a re-argument was ordered so that the case might be submitted to the Court as then constituted. Five of the seven justices upheld the regulation. See Edsall, J. K., “The Granger Cases and the Police Power,” 10 Report of the American Bar Association (1887), p. 298et seqGoogle Scholar.

⁸¹ Ruggles v. Ill., 108 U.S. 526, and Railroad Commission Cases, 116 U.S. 307.

⁸² See especially Cooley, T. M., “Limits to State Control of Private Business,” Princeton Review, March, 1878, and supra, notes 15, 27, 41, 72Google Scholar.

⁸³ Chicago, Milwaukee, and St. Paul R.R. Co. v. Minn., 134 U.S. 418 (1890).

⁸⁴ Ibid., p. 458.

⁸⁵ Ibid., at 461, 462, 463, 465, 466. Compare the views of Judge Cooley, infra, note 87.

⁸⁶ “A New Constitutional Amendment,” 24 American Law Review (1890), 908 and 930–931Google Scholar.

⁸⁷ “The Munn and Budd cases, as decisions of Courts of last resort, are sufficient of themselves within the jurisdiction of those Courts to establish the principle on which they rest. But we have endeavored to show that even without these decisions the principle may be discovered; its operation historically traced; that the constitutional prohibitions against depriving a citizen of his rights without due process of law and against the taking of private property without compensation cannot be conclusively urged against it; and that the theory that in the absence of constitutional prohibitions the principle is repugnant to the spirit of our institutions or our form of government, is contrary to almost the entire weight of judicial authority and legal opinion. One may urge all these considerations and yet be conscientiously aware of how much may be said on the other side.” Ibid., pp. 928–929. For the other side, see T. M. Cooley, op. cit. (supra, note 82). Yet even Judge Cooley concedes that “the doctrine that the representative [legislative] was subject to any other than a political responsibility, or that legislative acts might be questioned elsewhere; did not readily take root in American soil. It was the judges, not the legislature, who first became subject to popular mistrust… ” P. 234.

⁸⁸ Ibid., p. 909. “Mr. Justice Field and Judge Peckham [then on the New York Court of Appeals] are jurists of such eminence that their opinions have been as carefully read and will perhaps be regarded with as much attention in the future as the opinions of their respective Courts; but the view is submitted with all deference that before their opinions can be carried out an amendment to the Federal and State Constitutions is now necessary.” P. 930.

⁸⁹ 169 U.S. 466 (1898), at 725–728.

⁹⁰ 221 U.S. 1, 105.

⁹¹ See T. M. Cooley, op. cit. (supra, note 82), p. 236 ff.

⁹² American Commonwealth (1921 ed.), Vol. 2, p. 304Google Scholar.

⁹³ Justice Holmes in Noble State Bank v. Haskell, 219 U.S. 104 (1915), at 110.

⁹⁴ For a full discussion of the Brandeis brief in Supreme Court cases, see my volume Brandeis and the Modern State (1936), Chap. 6.

⁹⁵ 208 U.S. 412 (1908).

⁹⁶ “That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. … History discloses the fact that woman has always been dependent on man. … Some legislation to protect her seems necessary to secure a real equality of right. … It is impossible to close one's eyes to the fact that she still looks to her brother and depends on him. … A widespread and long-continued belief concerning [a fact] is worthy of consideration. We take judicial cognizance of all matters of general knowledge.” 208 U.S. 412, 241–2 (1908). This apparently means that the decision was based on “common knowledge” rather than on the knowledge gained from Mr. Brandeis' brief.

⁹⁷ “The Process of Judicial Legislation,” 48 Amer. Law Rev. 161 (1914), p. 164Google Scholar.

⁹⁸ The Growth of the Law (1924), p. 90Google Scholar.

⁹⁹ “The Rights of Citizens,” Scribner's Magazine, Sept., 1890Google Scholar.

¹⁰⁰ “The Living Law,” 10 Ill. Law Rev., 461 (1916), p. 466Google Scholar.

¹⁰¹ Op. cit. (supra, note 15), p. 234.

¹⁰² Cf. Morgan, J. T., “Partisanship in the Supreme Court,” North Amer. Rev., Feb., 1881, p. 180 ffGoogle Scholar.

¹⁰³ 134 U.S. 418 (1890).

¹⁰⁴ The judicial enlargement of the word “property” reached an extreme point in the International News Service v. Associated Press, 248 U.S. 215 (1918), where Justice Brandeis delivered a strong dissenting opinion. Mr. Justice Stone states his reaction to his development thus: “Beyond the traditional boundaries of the common law, only some imperative justification in policy will lead the courts to recognize in old values new property rights.” Reichelderfer v. Quinn. 287 U.S. 315, 319 (1932).

¹⁰⁵ Justice Peckham in Algeyer v. Louisiana, 165 U.S. 578 (1897), at 589.

¹⁰⁶ Op. cit. (supra, note 86), p. 930.

¹⁰⁷ Holmes, O. W., “The Path of the Law” (1897), in Collected Legal Papers, p. 181Google Scholar.

¹⁰⁸ Language of Mr. Justice Roberts in U.S. v. Butler, 297 U.S. 477 (1936), at 486.

¹⁰⁹ O. W. Holmes, op. cit., p. 184.

¹¹⁰ Ibid., p. 292.