THE ELASTICITY OF THE CONSTITUTION factories is such an interference with the liberty of these women that it comes within the condemnation of the fourteenth amend ment, guaranteeing to all persons the enjoyment of life, liberty and property. In criticising this case, I wish to leave out of the question the contention that the statute might have been upheld as a proper exer cise of the police power for the protection of the public health and morals, a proposi tion expressly repudiated by the court. The conception of liberty on which this decision was based is the outgrowth of certain fundamental opinions regarding the nature of government. If, as I believe to be the case, these opinions are not at the present time held either by political scholars, investigators and philosophers, or by the great body of the people, then the decision based thereon should not be considered a binding rule in future cases. It is matter of common knowledge among educated persons that for the better part of a century the American people accepted with substantial unanimity a body of doctrines often connected with the name of Thomas Jefferson, although it had been advocated and developed for some two hundred years by a series of writers and thinkers, some of the most eminent among whom were Althusius, Hugo Grotius, John Locke and Rousseau. It is, of course, impos sible to define these doctrines in a single sentence. But for our present purpose it may be permissible to express their essential idea as the belief that the true function of government is merely to prevent citizens from interfering with the rights of each other. All the work of the world ought to be done by the voluntary activity of individuals, according to the manner which seems best to each of them. There can be no doubt that substantially these views were in the minds of the statesmen who framed and the people who, through their representatives, ratified the fourteenth amendment to the constitution of the United States. When they inserted in that
amendment a provision prohibiting the states from depriving any person of liberty without due process of law, they meant by liberty the right to employ one's faculties in any way one choose. That includes the right to make a contract to labor at any time one sees fit. The Supreme Court of the United States so interpreted the word "liberty " (Allgeyer v. Louisiana, 165 U. S. 578), and a long series of federal and state cases have approved that construction. Consequently the New York Court of Appeals was following undoubted precedents when it declared the women's night work act unconstitutional. In the spirit of the framers of the fourteenth amendment, it protected the liberty of the citizen from the oppression of a tyrannical legislature. Yet one need but state it in this form to. impress the reader with the thought that there must be a flaw in the reasoning. To any person living in the world of men and not in the cloistered seclusion of judicial chambers, it is quite clear that the legisla ture did not intend an attack upon liberty when it passed that act. Rather, it meant to protect such liberty by removing con ditions that hampered the full enjoyment of the right to the "pursuit of happiness." The women of New York did not clamor for the right to toil at night in factories. Rather, they and their friends had urged the passage of that act, because they thought it would protect them against a social con dition which compelled them, through the force of competition, to consent to so un natural and harmful a mode of life. When the decision was rendered, those whom the court professed to protect felt themselves most aggrieved. The truth is that a large and growing, possibly the greater, number of people in America no longer accept as true the doc trines on which the judicial construction of the word liberty, as used in the constitution, is based. That conception itself is by no means of ancient lineage in the law. In older English statutes, from Magna Charta
