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The Green Bag
idea of individualism, seeking the pro tection of the rights and the promotion of the character and the happiness of the individual, we have come into a time in which the tendency and the progres sive movement is toward the idea of social welfare and the duty of the indi vidual to strive not only for his own rights or even the development of his own character, but for the welfare of the community of human society. It has become a sort of religion, and reli gion itself has shown the same tendency. This change in the tendency of pub lic opinion did not take place until long after the beginning of the industrial changes which were caused by the intro duction of machinery, but it was pro duced by those changes and intensified by the rapid accumulation of industrial capital, and when it was found that individualism had failed to solve the problem of the new industrial life, men were ready to take a trial at least of some new plan. It is the contrast between the present social and industrial conditions and the public opinion of the present day, with those of the times when the words of Magna Carta were adopted in their fundamental agreements by settlers of New Jersey and inserted in the charter of Maryland, that makes it interesting and useful to enquire how and to what purpose these same words, used in the charters of King John and Edward III, are now applied by the courts in de termining the rights of individuals as against the legislative powers of Ameri can republics. Recent decisions on the hours of labor and on compensation for injuries to workmen have called forth earnest and indignant protest, not only from men speaking on behalf of the workingmen directly affected, but also and especially from men interested in the cause of
democracy, as asserting the right of the people to control the government and to make such laws as they think will best promote the general welfare. On the part of some the protest, is made only against the mode of interpre tation and application of the terms of the Constitution. It is a plea for a further appreciation of the social and industrial facts, a better understanding of the real purpose of a constitution and wider outlook upon the course of human progress; but there are others that pas sionately insist that the obstacles to the carrying out of the popular wishes shall be wholly removed, and they demand either that the Constitution be amended or that the power of nullifying legisla tion by means of judicial decision shall be done away with. It is insisted that the courts, in decid ing questions arising under those clauses of the Constitution which relate to pro tection of liberty and property, apply to social and industrial questions, doc trines which were formulated under the influence of the economic and social opinions of a time that is past. Com plaint is made that judicial opinion based upon precedent tends to stand still and does not keep itself informed of new social and industrial conditions and the new conceptions of the rights and duties of the individual and society and of the relative importance of the rights of property and so-called human rights. On purely legal questions the opinions of the courts are accepted with out question, but when they involve the decision of social or industrial prob lems they are challenged by students of those subjects and by the people whom they most nearly affect. On the other hand, the very fact that the authority of the courts has been brought in question has stirred up those who appreciate the tremendous con
