tations is to confine the area of experimentation, the limitations are not self-defining, and they were intended to permit government. Necessarily, therefore, the door was not meant to be closed to trial and error. "Constitutional law, like any other mortal contrivance, has to take some chances." 23 The ascertainment of the limitations must be, as recently put by Mr. Justice McKenna, through “a judgment from experience as against a judgment from speculation." 24 That means that opportunity must be allowed for vindicating reasonable belief by experience.

"In answering that question we must be cautious about pressing the broad words of the Fourteenth Amendment to a drily logical extreme. Many laws which it would be vain to ask the court to overthrow could be shown, easily enough to transgress a scholastic interpretation of one or another of the great guarantees in the Bill of Rights. They more or less limit the liberty of the individual or they diminish property to a certain extent. We have few scientifically certain criteria of legislation, and as it often is difficult to mark the line where what is called the police power of the States is limited by the Constitution of the United States, judges should be slow to read into the latter a nolumus mutare as against the law-making power." 25

"Again we cannot wholly neglect the long settled law and common understanding of a particular state in considering the plaintiff's rights. We are bound to be very cautious in coming to the conclusion that the Fourteenth Amendment has upset what thus has been established and accepted for a long time. Even the incidents of ownership may be cut down by the peculiar laws and usages of a state." 26

"Obviously the question so stated is one of local experience on which this court ought to be very slow to declare that the State Legislature was wrong in its facts. Adams v. Milwaukee, 228 U. S. 572, 583. If we might trust popular speech in some States it was right - but it is enough that this court has no such knowledge of local conditions as to be able to say that it was manifestly wrong.' 99 27

"If the Fourteenth Amendment is not to be a greater hamper upon the established practices of the States in common with other governments than I think was intended, they must be allowed a certain latitude in the minor adjustments of life, even though by their action the burdens

23 Blinn v. Nelson, 222 U. S. 1, 7.

24 Tanner v. Little, Sup. Ct. Off., No. 224, decided March 6, 1916.

25 Noble State Bank v. Haskell, 219 U. S. 104, 110.

26 Otis Co. v. Ludlow Co., 201 U. S. 140, 154.

27 Patsone v. Pennsylvania, 232 U. S. 138, 144-5.

of a part of the community are somewhat increased. The traditions and habits of centuries were not intended to be overthrown when that amendment was passed." 28

The application of the Fourteenth Amendment, as thus approached, falls, broadly speaking, into four great classes of cases: legislation called forth by the modern industrial system, regulation of utilities, eminent domain, and taxation. As to each of these classes an illustration or two will have to suffice.29 To discuss Mr. Justice Holmes's opinions is to string pearls.

In industrial and social legislation the fighting, of course, has been around the conception of "liberty." Mr. Justice Holmes has been unswerving in his resistance to any doctrinaire interpretation. The effectiveness of his fight lies mostly in the acuteness with which he has disclosed when a claim is doctrinaire. Perception of the forces of modern society and persistent study of economics have enabled him to translate large words in terms of the realities of existence.

"If Montana deems it advisable to put a lighter burden upon women than upon men with regard to an employment that our people commonly regard as more appropriate for the former, the Fourteenth Amendment does not interfere by creating a fictitious equality where there is a real

28 Interstate Ry. Co. v. Massachusetts, 207 U. S. 79, 87.

29 Since his accession to the Supreme Court in 1902, Mr. Justice Holmes has written about 500 opinions; of these, about 200 involve constitutional law. In view of the increase of work before the Court in recent years, Mr. Justice Holmes has already participated in decisions extending considerably over one-fifth in volume of the decisions of the Court since 1789. One is reminded of his remarks at a dinner given him by the Boston Bar when he became Chief Justice of the Massachusetts Supreme Court: "I look into my book in which I keep a docket of the decisions of the full court which fall to me to write, and find about a thousand cases. A thousand cases, many of them upon trifling or transitory matters, to represent nearly half a lifetime! A thousand cases, when one would have liked to study to the bottom and to say his say on every question which the law ever has presented, and then to go on and invent new problems which should be the test of doctrine, and then to generalize it all and write it in continuous, logical, philosophic exposition, setting forth the whole corpus with its roots in history and its justifications of expedience real or supposed!

"Alas, gentlemen, that is life. I often imagine Shakespeare or Napoleon summing himself up and thinking: 'Yes, I have written five thousand lines of solid gold and a good deal of padding — I, who would have covered the milky way with words which outshone the stars!' 'Yes, I beat the Austrians in Italy and elsewhere: I made a few brilliant campaigns, and I ended in middle life in a cul-de-sac - I, who had dreamed of a world monarchy and Asiatic power.' We cannot live our dreams. We are lucky enough if we can give a sample of our best, and if in our hearts we can feel that it has been nobly done." From SPEECHES by Oliver Wendell Holmes, Speech at a dinner given to Chief Justice Holmes by the Bar Association of Boston on March 7, 1900, 82, 83.

difference. The particular points at which that difference shall be emphasized by legislation are largely in the power of the state." 30

"In present conditions a workman not unnaturally may believe that only by belonging to a union can he secure a contract that shall be fair to him. Holden v. Hardy, 169 U. S. 366, 397; Chicago, Burlington & Quincy R. v. McGuire, 219 U. S. 549, 570. If that belief, whether right or wrong, may be held by a reasonable man, it seems to me that it may be enforced by law in order to establish the equality of position between the parties in which liberty of contract begins. Whether in the long run it is wise for the workingmen to enact legislation of this sort is not my concern, but I am strongly of opinion that there is nothing in the Constitution of the United States to prevent it, and that Adair v. United States, 208 U. S. 161, and Lochner v. New York, 198 U. S. 45, should be overruled." 31

"If the legislature shares the now prevailing belief as to what is public policy and finds that a particular instrument of trade war is being used against that policy in certain cases, it may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses, and it may do so none the less that the forbidden act does not differ in kind from those that are allowed.

"It might have been argued to the legislature with more force than it can be to us that recoupment in one place of losses in another is merely an instance of financial ability to compete. If the legislature thought that that particular manifestation of ability usually came from great corporations whose power it deemed excessive and for that reason did more harm than good in their State, and that there was no other case of frequent occurrence where the same could be said, we cannot review their economics or their facts." 32

What makes these opinions significant beyond their immediate expression is that they come from a man who, as a judge, enforces statutes based upon economic theories which he does not share, and of whose efficacy in action he is sceptical.33 The judicial function here finds its highest exercise.

In the regulation of utilities we have an excellent illustration of the need of balancing interests and the delicacy of the task. Mr. Justice Holmes has both laid down the general considerations and illustrated their application.

30 Quong Wing v. Kirkendall, 223 U. S. 59, 63.

31 Coppage v. Kansas, 236 U. S. 1, 26–7.

32 Central Lumber Co. v. South Dakota, 226 U. S. 157, 160, 161.

33 (See, e. g., Dr. Miles Medical Co. v. Park & Sons, 220 U. S. 373, 411–412.)

"An adjustment of this sort under a power to regulate rates has to steer between Scylla and Charybdis. On the one side if the franchise is taken to mean that the most profitable return that could be got, free from competition, is protected by the Fourteenth Amendment, then the power to regulate is null. On the other hand if the power to regulate withdraws the protection of the Amendment altogether, then the property is naught. This is not a matter of economic theory, but of fair interpretation of a bargain. Neither extreme can have been meant. A midway between them must be hit." 34

"We express no opinion whether to cut this telephone company down to six per cent by legislation would or would not be confiscatory. But when it is remembered what clear evidence the court requires before it declares legislation otherwise valid void on this ground, and when it is considered how speculative every figure is that we have set down with delusive exactness, we are of opinion that the result is too near the dividing line not to make actual experiment necessary. The Master thought that the probable net income for the year that would suffer the greatest decrease would be 8.60 per cent on the values estimated by him. The Judge on assumptions to which we have stated our disagreement makes the present earnings 519 per cent with a reduction by the ordinance to 3 per cent. The whole question is too much in the air for us to feel authorized to let the injunction stand." 35

The cases arising under the power of eminent domain furnish a striking illustration of the element of relativity in constitutional law. It is settled that a State can take private property for "public purposes." What is "a public purpose"? The Supreme Court has refused to allow the States to be fettered by formula on this subject. Time and place and local need as determined by the local legislature must govern. Mr. Justice Holmes the other day again gave point to these considerations in sustaining the growing control by States over water power.

"In the organic relation of modern society it may sometimes be hard to draw the line that is supposed to limit the authority of the legislature to exercise or delegate the power of eminent domain. But to gather the streams from waste and to draw from them energy, labor without brains, and so to save mankind from toil that it can be spared, is to supply what, next to intellect, is the very foundation of all our achievements and all our welfare. If that purpose is not public we should be at a loss to say 34 Cedar Rapids Gas Co. v. Cedar Rapids, 223 U. S. 655-669. 35 Louisville v. Cumberland Tel. & Tel. Co., 225 U. S. 430, 436.

what is. The inadequacy of use by the general public as a universal test is established." 36

One would expect Mr. Justice Holmes to allow no finicky or textual arguments to interpose the Constitution as a barrier to the States' taxing power. In his opinions on taxation matters there is an amiable appreciation of the tantalizing difficulty of statesmen to make taxation in any form palatable.

"In the first place it is said to be an arbitrary discrimination. This objection to a tax must be approached with the greatest caution. The general expression of the Amendment must not be allowed to upset familiar and long established methods and processes by a formal elaboration of rules which its words do not import.

". . . The inequality of the tax, so far as actual values are concerned, is manifest. But, here again equality in this sense has to yield to practical considerations and usage. There must be a fixed and indisputable mode of ascertaining a stamp tax. In another sense, moreover, there is equality. When the taxes on two sales are equal the same number of shares is sold in each case; that is to say, the same privilege is used to the same extent. Valuation is not the only thing to be considered. As was pointed out by the Court of Appeals, the familiar stamp tax of two cents on checks, irrespective of amount, the poll tax of a fixed sum, irrespective of income or earning capacity, and many others, illustrate the necessity and practice of sometimes subsittuting count for weight." 37

"There is a look of logic when it is said that special assessments are founded on special benefits and that a law which makes it possible to assess beyond the amount of the special benefit attempts to rise above its source. But that mode of argument assumes an exactness in the premises which does not exist. The foundation of this familiar form of taxation is a question of theory. The amount of benefit which an improvement will confer upon particular land, indeed whether it is a benefit at all, is a matter of forecast and estimate. In its general aspects at least it is peculiarly a thing to be decided by those who make the law. The result of the supposed constitutional principle is simply to shift the burden to a somewhat large taxing district, the municipality, and to disguise rather than to answer the theoretic doubt. It is dangerous to tie down legislatures too closely by judicial constructions not necessarily arising from the words of the Constitution. Particularly, as was intimated in Spencer v. Merchant, 125 U. S. 345, it is more important for this court to

36 Mt. Vernon Cotton Co. v. Alabama Power Co., 240 U. S. 30, 32.

37 Hatch v. Reardon, 204 U. S. 152, 158, 159-60.