multiplied social relations a new social creed is demanded. A social philosophy that originated in the age of homespun does not fit the needs of a factory age.
There is no reason why the legal precedents adapted to conserving the welfare of society amid the simple conditions of the past should determine what is permissible amid the complex conditions of to-day.
We can not regulate modern gas and electrical corporations by decisions rendered in the days of the tallow dip; we can not adequately control four-track steam railroads merely by the law of the stage-coach and the public inn; we can not be content to have our labor legislation forever checked and thwarted by the decisions of a few men out of the many, and those few, not men of today, accountable in any way to their fellows, but dead men, who lived in the days when manufacture was carried on only in wholesome towns and villages, on a small scale and without modern "division of labor"—in fact, when few persons even cared whether women worked long hours, or little children toiled in mines, or workers breathed deadly fumes as they worked. . . . Of course, if we try to find in 1770 precedents to sustain 1912 legislation as to "sweatshops" or "underground bakeries" we shall not find any, for there were no "sweat-shops" or "underground bakeries" then, and no one would have cared or tried to pass laws about them then if there were.[1]
To require the courts to decide questions of legislative policy necessarily exposes them to attack, and few things would contribute more to maintain their hold on the good-will of the public than to relieve them from this responsibility. Either a more complete separation of legislative and judicial functions is necessary, or the courts should be kept better informed concerning the seasoned opinion of the community. The opponents of "the recall of judicial decisions" should consequently welcome any and every educational process that helps to keep the courts informed and thoroughly in sympathy with the progressive thought of the age. Well-intended criticism should not be frowned upon, but encouraged. Along with everything else that is human, the courts are likely to err, and criticism is the great corrective of judicial as well as of other error. There is no good and sufficient reason why substantially the same law should be held consistent with "the due process" clause of the constitution of one state and inconsistent with the same clause in the constitution of another state, especially when the law is more urgently needed in the latter and when the Supreme Court upholds its constitutionality. The unqualified manner in which a large portion of the press denounced the clause on the judiciary in the democratic platform of 1896 was most unfortunate. The worst enemies of the courts are those unqualifiedly opposed to calling them to account. Such an attitude suggests that our judicial system will not stand the light of criticism, tends to bring it under suspicion and to undermine its authority. To dam up the free expression of grievances real or imaginary forces people to nurse their wrongs, prevents the orderly correction of injustice, and creates the conditions of a social conflagration.
- ↑ William L. Ransom, op. cit., pp. 132-133.
