520
The Green Bag
have been derived by analogy. But such im plied limitations, if they exist, must be implied in fact. The idea of a prescriptive constitution, of principles running back of all governments of which bills of rights are but declaratory, is only another phase of the idea of natural law, and in its application means simply the finality of an ideal development of the fundamental principles of the common law. In many of our state courts this idea has been the bane of constitu tional decisions upon provisions of the bills of rights. Indeed it has some warrant in the notions of those by whom the bills of rights were framed, and if these were statutory provisions, the posi tion that they might be extended analogically as being declaratory of common law doctrines might be well taken. For our bills of rights represent the eighteenth century desire to lay down philo sophical and political and legal charts for all time, proper enough in men who believed they had achieved finality in thought in each connec tion. The first period of our constitutional law was under the influence of these ideas. But legislatures at that time were willing to be guided by the prescribed charts and would have con formed thereto had there been no such consti tutional provisions. The chief complaint dur ing this period was that the courts extended the possibilities of governmental action by inter pretation; for example, that they allowed the federal government to do much which it was denied the Constitution had granted thereto. Later, a period of vigorous legislation upon social subjects began and the complaint changed. Now it is urged that the interpretation of courts is too narrow, that legislatures, state and na tional, are shorn of the powers that belong to them. What has happened is this. Experience has shown, as judicial experience has always shown, the unwisdom of hard and fast enact ment. The eighteenth century political and legal charts have been found unsuitable. We have found that after all a bill of rights was wisely omitted from the original draft of the federal Constitution. Such provisions were not needed in their own day, they arc not desired in our day. It is true they have been aggravated to some extent by taking them to be declara tory and then reasoning from assumed first prin ciples instead of applying the provisions themselves. But that practice has been dis appearing with the wane of the idea of the finality of the common law, and the current reports show that with few conspicuous excep tions, both federal and state tribunals are definitely rejecting it. Consequently it is a misfortune that at the very time when spurious interpretation is thus losing its only foothold in judicial interpretation of constitutions, there should be a strong public demand for elimination or mitigation of undoubted restrictions by a process of spurious interpretation. . . . "With respect to interpretation, ... I take it our tasks are: (1) to rid ourselves here also of absolute theories, and in particular of the remains of the dogma of finality of the common law, (2) to repeal what ought to be repealed directly and straightforwardly and not store up mischief for the future by demanding indirect repeal by spurious interpretation, (3) above all
to develop a sociological method of applying rules and thence if need be of developing newones by the judicial power of finding the law." (See p. 504 ante.) "The Future of the Common Law." By Sur rogate Robert Ludlow Fowler. 13 Columbia Law Review 595 (Nov.). "That the newest-comers from Eastern and Southern Europe will take longer to assimilate and to become imbued with the national spirit, and familiar with the national laws, is not unlikely; but that their descendants will ulti mately reject the laws and the customs of their new country is contrary to experience and our past history. Generation by generation these aliens too will soon fade away into the dominant and stronger mass of the already mixed popula tion of this country. . . . "To the common lawyer, the common law is not an end in itself, but a means of furthering the convenience of political societies subject to that law. To the German jurists, for example, law is an end in itself, and they go off on the origin of society and the purposes of law; they are intensely interested in the motives which first led men to regulate conduct by law. To them jurisprudence is one branch of philosophy or sociology. Their speculations and theories have to common lawyers an odor of the laboratory; they do not smell of the common law work shop. German jurisprudence is pre-eminently a jurisprudence of conceptions; the jurispru dence of the common law is a jurisprudence of actualities. Common lawyers say, in substance, that there is no such thing as a 'science of law' in the true meaning of 'science.' The Roman lawyer, like the common lawyer, never regarded law from a purely scientific point of view. The Romans did not speak of juris scientia, but of juris notitia, juris peritia, juris prudentia. As used by common lawyers a 'science of law' refers merely to the result of an orderly research among a great mass of material. When most common lawyers speak of a 'science of law,' they do not employ 'science' in its true signification of a finding of some thing which is and exists before we discover it, but they use the term 'science' in its secondary meaning, as denoting an organ ized body of known facts. It has been well said, 'that' 'law' 'docs not exist until men make it, nor docs it exist as a subject outside of our conscious ness.' The deliberate opposition of common lawyers to the Continental philosophies of law' is founded on the opinion that 'they are darkened by metaphysical thought and weakened by de fective analysis of positive law.'" "The Law-Making Forces." By William M. Blatt. 47 American Law Review 641 (Sept.Oct). "Laws are kept in force by the constant bal anced pressure of numerous social groups, and laws are made by the withdrawal (through fear, indifference or self-sacrifice) of the pressure of one or more groups. An important corollary is: no law can be effective unless sustained by the pressure of a powerful group or of several groups in a powerful combination." See Government.
