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titheses, but as demands of clashing "rights," of matters of more or less, of questions of degree.

"General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise." 6

"As in other cases where a broad distinction is admitted, it ultimately becomes necessary to draw a line, and the determination of the precise place for that line in nice cases always seems somewhat technical, but still the line must be drawn." 7

This by no means implies a crude empiricism. True, judgment, conscious or inert, enters. Choice must be exercised. The choice is not, however, capricious; it involves judgment between defined claims, each of recognized validity, each with a pedigree of its own, but all of which necessarily cannot be satisfied completely.

"All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached. The limits set to property by other public interests present themselves as a branch of what is called the police power of the State. The boundary at which the conflicting interests balance cannot be determined by any general formula in advance, but points in the line, or helping to establish it, are fixed by decisions that this or that concrete case falls on the nearer or farther side. For instance, the police power may limit the height of buildings, in a city, without compensation. To that extent it cuts down what otherwise would be the rights of property. But if it should attempt to limit the height so far as to make an ordinary building lot wholly useless, the rights of property would prevail over the other public interest, and the police power would fail. To set such a limit would. need compensation and the power of eminent domain." 8

Lochner v. New York, 198 U. S. 45, 76.

Ellis v. United States, 206 U. S. 246, 260.

The recognition of differences of degree in the whole development of the law is most luminously put in the following passage: "I do not think we need trouble ourselves with the thought that my view depends upon differences of degree. The whole law does so as soon as it is civilized. See Nash v. United States, 229 U. S. 373, 376, 377. Negligence is all degree — that of the defendant here degree of the nicest sort; and between the variations according to distance that I suppose to exist and the simple universality of the rules in the Twelve Tables or the Leges Barbarorum, there lies the culture of two thousand years." - Leroy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry., 232 U. S. 340, 354.

• Hudson County Water Co. v. McCarter, 209 U. S. 349, 355–6.

Thus, while Mr. Justice Holmes has expounded the philosophy of differences of degree and applied it in a variety of cases, he has been alert to demand a telling difference upon which a distinction can be predicated. A neat instance is his dissenting opinion in Haddock v. Haddock.

"I am the last man in the world to quarrel with a distinction simply because it is one of degree. Most distinctions, in my opinion, are of that sort, and none are the worse for it. But the line which is drawn must be justified by the fact that it is a little nearer than the nearest opposing case to one pole of an admitted antithesis. When a crime is made burglary by the fact that it was committed thirty seconds after one hour after sunset, ascertained according to mean time in the place of the act, to take an example from Massachusetts (R. L. c. 219, sec. 10), the act is a little nearer to midnight than if it had been committed one minute earlier, and no one denies that there is a difference between night and day. The fixing of a point when day ends is made inevitable by the admission of that difference. But I can find no basis for giving a greater jurisdiction to the courts of the husband's domicil when the married pair happens to have resided there a month, even if with intent to make it a permanent abode, than if they had not lived there at all." 9

This, in brief, is the attitude in which and the technique with which Mr. Justice Holmes approaches the solution of specific questions in the two great active fields of constitutional law: the Commerce Clause and the Fourteenth Amendment.

Just as the needs of commerce among the several states furnished the great centripetal force in the establishment of the Nation, so the Commerce Clause has now become the most important nationalizing agency of the Federal Government. Mr. Justice Holmes has at once applied this power with unimpaired depth and breadth, and affirmed the true basis of its need to-day no less than in 1789.

"I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States. For one in my place sees how often a local policy prevails with those who are not trained to national views, and how often action is taken that embodies what the Commerce Clause was meant to end."

• Haddock v. Haddock, 201 U. S. 562, 631–2.

99 10

10 "Law and the Ccurt," Speech at a dinner of the Harvard Law School Association of New York on Feb. 15, 1913, from SPEECHES by Oliver Wendell Holmes, 98, 102.

He has sought to enforce the power of commerce among the states with depth and breadth because to him such "commerce is not a technical legal conception, but a practical one drawn from the course of business." 11 That interstate commerce is a practical conception he recognizes in its practical implications. Thus, commerce means, not only transportation, not only control over the instrumentalities of transportation, but the human relations involved in commerce. They present some of the acutest problems of commerce. Therefore, insisting in himself as he does in others on the need "to think things instead of words," in one of his memorable opinions, against the majority of the Court, he asserted the power of Congress to legislate in regard to the industrial relations on interstate railroads as a means of securing industrial peace.

"It cannot be doubted that to prevent strikes, and, so far as possible, to foster its scheme of arbitration, it might be deemed by Congress an important point of policy, and I think it impossible to say that Congress might not reasonably think that the provision in question would help a good deal to carry its policy along. But suppose the only effect really were to tend to bring about the complete unionizing of such railroad laborers as Congress can deal with, I think that object alone would justify the act. I quite agree that the question what and how much good labor unions do, is one on which intelligent people may differ, — I think that laboring men sometimes attribute to them advantages, as many attribute to combinations of capital disadvantages, that really are due to economic conditions of a far wider and deeper kind — but I could not pronounce it unwarranted if Congress should decide that to foster a strong union was for the best interest, not only of the men, but of the railroads and the country at large." 12

The extension of interstate commerce through modern inventions, the overwhelming field which it has absorbed, are obvious. Logically, there is no limit to the interrelation of national commerce and the activities of men in the separate States. But the main ends of our dual system of States and Nation here, too, call for adjustment, and logic cannot hold sterile sway.

"In modern societies every part is related so organically to every other, that what affects any portion must be felt more or less by all the

Swift v. United States, 196 U. S. 375, 398.

12 Adair v. United States, 208 U. S. 161, 191-2. Cf. Mr. Justice Higgins in 29 HARV. L. REV. 13, 23 ff.

rest. Therefore, unless everything is to be forbidden and legislation is to come to a stop, it is not enough to show that, in the working of a statute, there is some tendency, logically discernible, to interfere with commerce or existing contracts.13

Therefore distinctions have to be made and "even nice distinctions are to be expected." 14 But the Federal power must be dominantly left unimpaired and a State cannot defeat the withdrawal of national commerce from State tampering "by invoking the convenient apologetics of the police power." 15

Thus far as to the great Federal power which indirectly limits State activity. In its negative prohibitions the Constitution is a denial of State action as such. When the Fourteenth Amendment first came before the Court in the Slaughterhouse Cases,16 the four dissenting justices, under the lead of Mr. Justice Field, sought to pour into the general words of the Due Process Clause the eighteenth century "law of nature" philosophy. This attempt gradually prevailed and Mr. Justice Field's dissent in effect established itself as the prevailing opinion of the Supreme Court.17 In Allgeyer v. Louisiana,18 we reach the crest of the wave. The break comes with the Lochner case.19 Mr. Justice Holmes has given us the explanation for this attempt to make a permanent prohibition of a temporary theory.

"It is a misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law, and forgets that what seem to him to be first principles are believed by half his fellow men to be wrong. I think that we have suffered from this misfortune, in State courts at least, and that this is another and very important truth to be extracted from the popular discontent. When twenty years ago a vague terror went over the earth and the word socialism began to be heard, I thought and still think that fear 20 was translated into doctrines

13 Diamond Glue Co. v. United States Glue Co., 187 U. S. 611, 616.

14 Galveston, etc. Ry. v. Texas, 210 U. S. 217, 225.

15 Kansas Southern Ry. v. Kaw Valley District, 233 U. S. 75, 79.

16 16 Wall. (U. S.) 36.

17 See Dean Pound, "Liberty of Contract," 18 YALE L. J. 454, 470.

18 165 U. S. 578.

19 198 U. S. 45.

20 That this fear has been an unconscious factor he has told us elsewhere: "When socialism first began to be talked about, the comfortable classes of the community were a good deal frightened. I suspect that this fear has influenced judicial action both here and in England, yet it is certain that it is not a conscious factor in the de

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that had no proper place in the Constitution or the common law. Judges are apt to be naif, simple-minded men, and they need something of Mephistopheles. We too need education in the obvious to learn to transcend our own convictions and to leave room for much that we hold dear to be done away with short of revolution by the orderly change of law." 21

Against this subtle danger of the unconscious identification of personal views with constitutional sanction he has battled incessantly. Enough is said if it is noted that the tide has turned. The turning point is the dissent in the Lochner case. It still needs to be quoted.

"The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. . . . Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But 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. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the questions whether statutes embodying them conflict with the Constitution of the United States." 22

His general attitude towards the Fourteenth Amendment at once reflects his whole point of view towards constitutional interpretation and is a clue to the hundreds of opinions in which it is applied. In all the variety of cases the opinions of Mr. Justice Holmes show the same realism, the same refusal to defeat life by formal logic, the same regard for local needs and local habits, the same deference to local knowledge. He recognizes that government necessarily means experimentation; and while the very essence of constitutional limicisions to which I refer. I think that something similar has led people who no longer hope to control the legislatures to look to the courts as expounders of the Constitutions, and that in some courts new principles have been discovered outside the bodies of those instruments, which may be generalized into acceptance of the economic doctrines which prevailed about fifty years ago, and a wholesale prohibition of what a tribunal of lawyers does not think about right. I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions." "The Path of the Law," 10 HARV. L. REV. 457, 467.

21 SPEECHES by Oliver Wendell Holmes, "Law and the Court," Speech at a dinner of the Harvard Law School Association of New York on Feb. 15, 1913, 98, 101-102. 22 Lochner v. New York, 198 U. S. 45, 75-6.

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