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THE ATLANTIAN
11
WORKMEN’S WAGE * AND j
THE CONSTITUTION.
The decision of the New York Court j
of Appeals declaring the workmen’s
compensation act of that State un
constitutional, on the ground that it
violates the provision of the four
teenth amendment prohibiting the
taking of property without due pro
cess of law, is generally deplored.
This distinctively retrogressive inter
pretation of the constitution finds ap
proval only in ultrareactionary quar
ters. Even conservative journals find
the decision regrettable. It certainly
creates a serious situation, for it
erects a constitutional barrier, at least
temporarily, across the path of a leg
islative reform that is clearly demand
ed by economic expediency and so
cial justice. The effect must be to
weaken still further popular respect
for the constitution and the courts.
The opinion delivered by the New
York justices may be said, however,
to exhibit the limitations of the ju
dicial mind rather than to demon
strate the rigidity of the constitution
itself. A body of men more amena
ble to the influence of "economic,
philosophical and moral theores,"
would doubtless have worked out a
solution of the problem presented to
the court in the New York case. The
justices who pronounced the work
men’s compensation act unconstitu
tional simply showed themselves un
equal to the opportunity offered them.
If is tolerably certain that if this issue
is brought before other State courts,
a different interpretation of the con
stitution will be forthcoming sooner
or later. There is wide divergence
in the decisions of the courts on other
questions of social legislation. The
same lack of unanimity may be pre
dicted with reference to workmen’3
compensation acts.
The spirit of the New York de
cision, by the way, is in striking con
trast with that of the opinion of the
Supreme Court of the United States
in the Oregon case. In that opinion
the propriety of interpreting the pro
visions of our constitutions in the light
of the requirements of social justice
and progress was clearly recognized.
The opinion of the court, as deliver
ed by Justice Brewer, contains these
pregnant words: “It. may not be amiss
in the present case, before examining
the constitutional questions, to notice
the course of legislation as well as
expressions of opinion from other than
judicial sources. . . . The . . .
legislation and opinions referred to
. . . are significant of a wide
spread belief that woman’s physical
structure, and the special functions
she performs in consequence thereof,
justify special legislation restricting,
or qualifying the conditions under
which she should be permitted to toil.
Constitutional questions, it is true, are
not settled by even a consensus of
present public opinion ... At
the same time, when a question of
fact is debated and debatable, and the
extent to which a special constitution
al limitation goes is affected by the
truth in respect to that fact, a wide-
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cerning it is worthy of consideration.
We take judicial cognizance of all
matters of general knowledge.” If the
New York justices had given due
weight to these considerations their
ruling in the recent case would have
been the reverse of what it was.
Even the London Times expresses
surprise at the reactionary attitude of
American judges on questions of so
cial legislation. Says the Times: “To
read these decisions is to go back to
a world which has for us as good as
passed away. Their authors seem to
think that freedom of employer and
employed means doing what one
wishes, not doing what one is order
ed to do. They extol the value of
such freedom. They hold that it is
gone if grown up people are sent to
prison or fined for working in their
way, on their own terms and in their
own hours. . . . Language which
half a century ago was familiar here
and which was then regarded as con
taining the core of Liberalism is re
peated with confidence and emphasis
from the Bench of the Supreme Court
and the State courts. Some of our
judges are charged by certain labor
members with being unsympathetic
with trade unions. What would these
critics say about judges, many of them
elected by popular vote, who continue
tu hold firmly to the doctrines ex
pounded by early Victorian economists
which trade unions were supposed to
violate? It is notable that this exal
tation of the value of individual lib
erty in the relations of capital and
labor has its special home, some would
say its last refuge, in America.”
It is, of course, inconceivable that
the barrier to the improvement of the
laws relating to workmen’s compen
sation raised by the New York de-
I cision will be allowed to stand. In
some way a solution of the difficulty
will be found, perhaps through a con
stitutional amendment, more probably
through a relational and progressive
interpretation of the present provis
ions of the constitution. Dr. Edward
T. Devine puts the situation admir-
i aMy in these words: “Prom their
I different points of view every great
J social interest; business, labor,
I science, religion, and the home, will
| arise to bear its testimony against
the constitutional views embodied in
this decision,, and will demand that
i lawyers now exercise their ingenuity
in devising some plan for restoring
to the people the safeguards of which
; il. has deprived them. . . . We
: cun not believe that in order to secure
; a rational compensation system it is
necessary to amend the constitution
in such a way as to deprive citizens
of the guaranty of a ‘due process of
law.’ We can imagine cases in which
this right may tsill be worth preserv-'
ing, though we do not remember that ;
the State Legislatures, prior to the’ ’
adoption of the fourteenth amend
ment, were especially pron to pass
laws which restricted it; or that the !
amendment has notably served the 5 '
purpose of protecting life, liberty, or v;
property from illegal and unjust ex
propriation. Probably some other