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MR. JUSTICE HARLAN, with whom MR. JUSTICE WHITE and MR. JUSTICE DAY concurred, dissenting.
MR. JUSTICE PECKHAM,
delivering the opinion of the court.
MR. JUSTICE HOLMES dissenting
I regret sincerely that I am unable to agree
with the judgment in this case, and that I think it my duty
to express my dissent.
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 embody their opinions in law. It is settled by
various decisions of this court that state constitutions and state
laws may regulate life in many ways which we as legislators might
think as injudicious or if you like as tyrannical as this, and
which equally with this interfere with the liberty to contract.
Sunday laws and usury laws are ancient examples. A more modern
one is the prohibition of lotteries. The liberty of the citizen
to do as he likes so long as he does not interfere with the liberty
of others to do the same, which has been a shibboleth for some
well-known writers, is interfered with by school laws, by the
Post Office, by every state or municipal institution which takes
his money for purposes thought desirable, whether he likes it
or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's
Social Statics. The other day we sustained the Massachusetts
vaccination law. Jacobson v. Massachusetts, 197 U.S. 11. United
States and state statutes and decisions cutting down the liberty
to contract by way of combination are familiar to this court.
Northern Securities Co. v. United States, 193 U.S. 197. Two years
ago we upheld the prohibition of sales of stock on margins or
for future delivery in the constitution of California. Otis v.
Parker, 187 U.S. 606. The decision sustaining an eight hour law
for miners is still recent. Holden v. Hardy, 169 U.S. 366. 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 question whether statutes embodying them conflict with
the Constitution of the United States.
General propositions do not decide concrete
cases. The decision will depend on a judgment or intuition more
subtle than any articulate major premise. But I think that the
proposition just stated, if it is accepted, will carry us far
toward the end. Every opinion tends to become a law. I think
that the word liberty in the Fourteenth Amendment is perverted
when it is held to prevent the natural outcome of a dominant opinion,
unless it can be said that a rational and fair man necessarily
would admit that the statute proposed would infringe fundamental
principles as they have been understood by the traditions of our
people and our law. It does not need research to show that no
such sweeping condemnation can be passed upon the statute before
us. A reasonable man might think it a proper measure on the score
of health. Men whom I certainly could not pronounce unreasonable
would uphold it as a first instalment of a general regulation
of the hours of work. Whether in the latter aspect it would be
open to the charge of inequality I think it unnecessary to discuss.
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