The Courts and Social Questions Day are impressed with the results of expert examination of the conditions of modern labor and refer to decisions of the Supreme Court itself to the effect that regulation of the pursuit of any trade or business is within the police power of the states unless they are utterly unreasonable and interfere in a manner wholly arbitrary with the rights of the citizen, and they conclude that this statute regulating the hours of labor in bakeries is not invalid. Justice Holmes sees clearly the change that has taken place in social conditions and economic theories. He says: "This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to enact their opinion in law." He insists that the courts should not let the meaning of the liberty of con tract guaranteed by the Constitution be determined by the prevailing opinion of a particular period and savs, "The Fourteenth Amendment does not enact Mr. Herbert Spencer's 'Social Statics.'" The diversity of opinion in the case arose, not out of any difference with regard to the duty of the courts to maintain the Constitution as the law of the land, and to enforce it against the will of the majority expressed in acts of the legislature, but out of differences between the judges in their information with regard to the effects of long hours of labor in bakeries and in their views with regard to the relations between the individual and society and the true limits of individual liberty. The ma jority gave it a meaning which it had
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acquired in a period of the prevalence of the individualist philosophy, and Mr. Justice Holmes took a longer view both backward and forward. He was thinking, perhaps, of the meaning it had in the days of King John, as well as that which it was likely to have if the modern tendency toward the organic relation of the individual to the state should prevail. There is an earlier case in the Supreme Court which shows how the decision of such questions is affected by the infor mation in the mind of the Court with respect to the industrial conditions. Holden v. Hardy, 169 U. S. 366, 1898, was a case relating to the hours of labor of men of full age engaged in min ing or smelting metals. A statute of Utah limited their labor to eight hours a day, and the Supreme Court in a strong and lucid opinion by Justice Brown (Justices Peckham and Brewer alone dis senting) held that such a statute was within the police power of the state and was not an unconstitutional interference with the liberty of contract nor a denial of due process of law. "The fact that both parties are of full age and compe tent to contract does not necessarily deprive the state of the power to inter fere where the parties do not stand upon an equality or where the public health demands that one party to the contract shall be protected against himself." This suggestion was not acted upon in the Lochner case, nor was there proof in that case of the conditions of modern industries by reason of which the work man, because of the competition of other laborers and because the raw material and the tools are in the hands of others, is not on an equality with the employer in making contracts with respect to the length of his day's work. There are later cases in the Supreme Court relating to legislation limiting
