To anyone who is satisfied with the present system of judicial review of legislation, we recommend a careful study of the opinions of the members of the Supreme Court who dissented from the recent decision sustaining the Adamson law. They express, with unusual candor, the grounds on which four of the nine members of the court were willing to annul a statute which a large majority of Congress had deemed essential to public safety. That they express the views of justices who happen in this case to be in the minority does not lessen their importance. Only two weeks before, the same court, again by a five to four decision, had sustained the Washington workmen's compensation and state insurance law; but two of the members who were of the majority in the Adamson law case dissented in the Compensation case. Only three members of the court. Justices Holmes, Brandeis, and Clark, voted to sustain both laws. Six members considered at least one of these pieces of social legislation a violation of due process of law.

The dissenting opinion of Mr. Justice Day is the more interesting because it is the view of a man who has generally been aligned with the more liberal wing of the Supreme Court, and whose attitude toward social legislation has been sympathetic. Mr. Justice Day conceded that Congress could constitutionally pass a wage law." I am not prepared to deny to Congress, in view of its constitutional authority to regulate commerce among the states, the right to fix by lawful enactment the wages to be paid to those engaged in such commerce in the operation of trains carrying passengers and freight. While the railroads of the country are privately owned, they are engaged in a public service, and because of that fact are subject in a large measure to governmental control." He dissented because he conceived that Congress had not sufficiently investigated and deliberated, because its judgment in the controversy was rendered without the information requisite to a just decision." Inherently, such legislation requires that investigation and deliberation shall precede action." There should be opportunity to be heard, and an adjudication based on a full consideration of the interests of carriers, of employees, and of the public.

Conceding, for the sake of argument, the truth of this criticism of the way in which the Adamson law was enacted, does it not involve an extraordinary conception of the function of a judiciary in a democratic republic? Is it any of the court's affair whether Congress deliberates briefly or at length, whether it acts on full information or on inspiration? Mr. Justice Day's opinion involves the dangerous fallacy of looking on the settlement of a wage dispute as a purely judicial function, a more or less mechanical search for a discoverable truth, an adjudication of what a cognizable standard of justice requires. It attributes to Congress the functions and the limitations of a court, which can act only on evidence legally before it and after hearing and argument. That as able and progressive a mind as that of Mr. Justice Day should apply this judicial standard to Congress is amazing. For plainly what is a just wage is not a judicial question. Essentially, it is a political question, even though its details may be susceptible of judicial adjustment. And Congress is not expected to treat it judicially, as a court decides a controversy between two litigants. Congress is composed of men elected because they hold certain convictions, certain predisposed and proclaimed views of public policy. It is of the very essence of democracy that these views should guide them to a decision.

When President Wilson asked Congress to enact the Adamson law, he put his request on the ground that the conscience of the community approved the basic eight-hour standard, and was willing to concede this part of the Brotherhoods' demands as a condition of peace. Congress, in touch with a vitally affected constituency, agreed with him. Is the Supreme Court competent to say that the President and Congress misinterpreted the public conscience? Or that they did not sufficiently investigate and deliberate upon it? In any rational scheme of governmental division of labor, can a body of nine lawyers, necessarily out of touch with the sources of public opinion, necessarily confined to ardous legal labors, appointed for life and responsible to no popular constituency, can such a body of men safely be allowed to supervise Congress in its duty of interpreting the will of the people?

The opinion of Mr. Justice Pitney proceeds on very different grounds. It is a supreme example of what Roscoe Pound has felicitously termed "mechanical jurisprudence." By strictly logical deduction, by what appears to be a cold intellectual process, it builds up a system of legal "rights," deduced from principles of liberty and property, and demonstrates that they are incompatible with the Adamson law. The right of property includes a category of constituent rights, "the right to control, to manage, and dispose of it [property], the right to put it at risk in business, and by legitimate skill and"enterprise to make gains beyond the fixed rates of interest, the right to hire employees, to bargain freely with them about the rate of wages, and from their labors to make lawful gains. …” The right to bargain as to wages, by logical deduction, implies the right to refuse any terms that may be offered. "It is of the very essence of the right that the parties may remain in disagreement if either party is not content with any term proposed by the other." These rights, thus logically delimited, are protected by the Constitution against all legislation which does not fall within a well defined category of laws relating to health, safety and morals. The same formal logic is apparent in the treatment of the question of interstate commerce. The opinion quotes with approval, as applicable to the Adamson law. Justice Harlan's statement in the Adair case, that the law there in question could have no "possible legal or logical connection" with interstate commerce, and that "in itself and in the eye of the law" it has no bearing on the traffic with which the employee is connected. Wage legislation, Mr. Justice Pitney points out, cannot affect commerce by making employees more contented and more efficient, because it puts no legal obligation on them to become more contented or efficient. "The increase affected is not at all conditioned upon contented or efficient service. It benefits alike those who are efficient and those who are not." "The suggestion that it was passed to prevent a threatened strike, and in this sense to remove an obstruction from the path of commerce, while true in fact, is immaterial in law." 

This method of solving constitutional questions by formal logic was popular a decade ago, and it had its conveniences. It bears the stamp of inevitability, of juristic necessity, and thus relieves the judge from the responsibility of an unpopular decision. It led to strange consequences. A state court invalidated a labor law applicable only to women, on the ground that women had the same "natural rights" as men, and hence could not be made the subject of a law not equally applicable to men. The United States Supreme Court upset a state law limiting to ten the hours of labor in bakeries, on the ground that there was no legal relation between hours of labor and health, although a state commission of experts had found that there was such a connection in fact. This method has now generally been discredited. For it is now realized that the appearance of logical inevitability is only an illusion. It is the warmth generated by human sympathies and aversions that determines the direction the logical process will take, not any cold and abstract deduction. The formal dress in which the decisions were clothed merely concealed the fact that it was a political function which the courts were exercising, and that their social outlook ultimately determined their conclusions. A more realistic point of view appeared. Beginning with the epoch-making brief of Mr. Brandeis in Muller v. Oregon, the conception has gradually prevailed that the relation of a law to health and safety and welfare, to commerce and society, is a question for empirical investigation rather than legal speculation. And gradually, also, Mr. Justice Holmes's view has gained ground—that the legislative power over liberty and property is not to be confined within predetermined legal categories, but that it extends to all the great human wants, and comprises all measures that a "strong and preponderant public opinion" sanctions. The decisions in the Oregon minimum wage and ten hour law cases, now pending, will reveal whether these views now command a majority of the United States Supreme Court.

Yet while this more realistic attitude toward social legislation marks an immense advance over the discredited scholasticism to which Mr. Justice Pitney's dissent harks back, it also brings to light with increasing clarity the utter absurdity of submitting questions of this sort to a judicial tribunal. If the relation of social legislation to health and public welfare is a question of fact, is a court of cloistered jurists, without even a staff of scientific investigators, capable of deciding it? Is not that precisely the function of a legislature, with its committees and experts? And is the Supreme Court more competent to determine whether a law is in consonance with a preponderant public opinion than a legislature, whose very tenure is dependent on public opinion? That the Supreme Court should continue to exercise this function is one of the standing anomalies of our constitutional system. 

It has become a commonplace that perhaps the most far-reaching effect of the present war will be an ever-increasing scope of governmental control over private business, and over the standards of life and labor. The United States no more than the countries of Europe can resist it. It is a program which will call for a thorough revision of many prevailing conceptions of property and private liberty; but it promises immense gains in national efficiency and happiness. This whole program is imperiled as long as the Supreme Court retains its present power over social legislation; how ominous the peril is, the five to four decisions of the past few weeks reveal. There are only two ways of avoiding it. Either the appointments to the Supreme Court must be frankly based on the political and social outlook of the nominee; or the Supreme Court must be shorn of its present power of upsetting social legislation on the ground that it is inconsistent with due process. Can it be doubted that the latter is the safer and sounder course?