laws, dealing in many cases with the detailed subjects of legislation. These constitutional restraints by the shortening of the legislative session and otherwise, have had the effect of making any kind of progressive legislation, particularly where public opinion is not effectively educated, very difficult of enactment.

Our rigid State Constitutions with these detailed provisions, designed to impede the enactment of laws, have made the problem of effective labor legislation difficult in another point of view, in that they develop in some cases what may be termed an over-subtlety in lawyers and courts in the construction of these constitutional provisions. This is illustrated by the frequency with which labor and other reformatory legislation has been held violative of State Constitutions, while under the broader provisions of Federal Constitution such judicial annullment of Congressional legislation has been far less frequent. In this connection, however, it should be observed that the legislative measures which are thus annulled in the courts, are sometimes carelessly prepared, without observance of constitutional limitations, and, therefore, are peculiarly vulnerable to judicial criticism. In this country personal property rights and liberty of private contract and protection against class legislation are secured both by the Federal and State Constitutions, so that a two-fold constitutional question under our dual form of government is presented in testing the validity of this class of legislation.

Commerce and business are not limited by, and do not recognize state lines, and this fact must be recognized in the enactment of legislation of this character, as a manufacturer is confronted with competitors from other states who may be subjected to very different legislation. . . .

Under these complex conditions, in our community of federated sovereign states, it is, of course, very desirable that we should have uniformity of legislation by the states on matters relating to the conditions of labor. This, however, is very difficult of realization for the obvious reason that there is a vast difference in local conditions which must be studied and to which such legislation must be adapted; and, therefore, there is a difference in the local public opinion which is necessary to secure such legislation and make it effective. The extension of manufacturing industries throughout the country has developed the fact that public opinion in the states which are newer in industrial growth is not yet prepared to enact and enforce the legislation which has been enacted and is being enforced in the older states, even in the correction of the recognized abuses.

These difficulties and complexities have led many earnest reformers, who are impressed with the facility with which such progressive legislation is enacted by a sovereign parliament of a single government under the flexible constitution of Great Britain, to deplore the restraints growing out of our complex form of government, and we have a demand not only for legislation from the Federal Government which would involve a strained construction of the Federal power to regulate interstate commerce, but some go further and ask for an amendment of the Constitution of the United States so as to give the Federal Government control over all conditions of labor. . . .

The contrast, however, between the facility of legislation in the way of social reform under the flexible constitution of Great Britain and the delay and difficulty encountered under our Federal system of rigid constitutions, is less important, when the underlying power of public opinion essential for the enforcement of any social reform is considered. It has been wisely said that legislation is the final agency by which the law is brought into harmony with social needs. Those needs must, however, exist and be recognized by prevailing public opinion before legislation, particularly in regard to such relations as employer and employee, master and servant, can become effective.

While information and discussion will in time develop the public opinion which will remedy existing abuses by appropriate local legislation, this gradual progress will be a sure one.

QUESTIONS

1. Do you know of any powers delegated by the Constitution to a Federal Government, other than those mentioned above, that could be used as the basis for labor legislation?

2. List the limitations imposed by the Federal Constitution upon labor legislation enacted by (a) Congress; (b) a state legislature.

3. List the limitations imposed by the constitution of your own State upon its legislature in the enactment of labor laws.

4. How much labor legislation is there in the constitution of your state? 5. Ask 25 laboring men or women distributed among at least ten different industries, whether they would prefer to have their hours, wages, and conditions of employment as to health and safety, regulated by Congress or the state legislature. Report your findings to the class.

6. Brief the case for and against an amendment to the Federal Constitution which would give the Federal Government the power to regulate labor problems in the United States. Which side would you prefer to defend?

D. CONSTITUTIONAL LIMITATIONS UPON LABOR LEGISLATION

A

[As labor legislation in general is an exercise of the police power, it will not be upheld and enforced by the courts if it does not conform to the requirements imposed upon the police power by the common law and by the State and Federal Constitutions. Federal legislation (1) must be within the limits of a power conferred by the Constitution, (2) must be reasonably necessary to the exercise of such a power; and (3) must not transgress the express prohibitions imposed upon the Federal Government by the Constitution. State legislation (1) must be for the public good and reasonable; (2) must not invade an exclusively federal field; (3) must not transgress the prohibitions imposed upon the states by the Federal Constitution (the most important of which are contained in Amendment XIV); and (4) must not transgress the prohibitions contained in the Constitution of the state. Several of the limitations have very indefinite boundaries that only very gradually attain cognizable position by the process of judicial inclusion and exclusion. This method of elaboration has all the merits of flexibility but all the disadvantages of uncertainty. Especially when the police power is entering new fields of a contentious nature, it is difficult for the legislator and the layman to know where the judicial mind is going to strike a balance between the traditional conception of the functions of the state and the rapidly changing public opinion. So in connection with the recent labor legislation (and the bulk of labor legislation is comparatively recent) it is particularly interesting and important to observe where the courts will draw the line between legitimate exercise of the police power and violation of due process, denial of equal protection, or abridgment of other rights and privileges guaranteed to the individual. The following case will illustrate the method employed in the drawing of this line.]

B

HOLDEN v. HARDY

United States Supreme Court. 1898. 169 U. S. 366.

MR. JUSTICE BROWN delivered the opinion of the court:

This case involves the constitutionality of an act of the legislature of Utah of March 30, 1896, chap. 72, entitled "An Act Regulating the Hours of Employment in Underground Mines and in Smelters and

Ore Reduction Works." [The Act fixed an eight-hour day for workingmen employed in underground mines, and smelters or other ore reduction works, except in cases of emergency.]

The validity of the statute in question is, . . . . challenged upon the ground of an alleged violation of the 14th Amendment to the Constitution of the United States, in that it abridges the privileges or immunities of citizens of the United States; deprives both the employer and the laborer of his property without due process of law, and denies to them the equal protection of the laws. As the three questions of abridging their immunities, depriving them of their property, and denying them the protection of the laws, are so connected that the authorities upon each are, to a greater or less extent, pertinent to the others, they may properly be considered together. .

In passing upon the validity of state legislation under that Amendment, this court has not failed to recognize the fact that the law is to a certain extent a progressive science; that in some of the states methods of procedure which, at the time the Constitution was adopted, were deemed essential to the protection and safety of the people, or to the liberty of the citizen, have been found to be no longer necessary; that restrictions which had formerly been laid upon the conduct of individuals, or of classes of individuals, had proved detrimental to their interests; while, upon the other hand, certain other classes of persons, particularly those engaged in dangerous or unhealthful employments, have been found to be in need of additional protection. . . .

While the cardinal principles of justice are immutable, the methods by which justice is administered are subject to constant fluctuation, and the Constitution of the United States, which is necessarily and to a large extent inflexible and exceedingly difficult of amendment, should not be so construed as to deprive the states of the power to so amend their laws as to make them conform to the wishes of the citizens as they may deem best for the public welfare without bringing them into conflict with the supreme law of the land.

Of course, it is impossible to forecast the character or extent of these changes, but in view of the fact that, from the day Magna Charta was signed to the present moment, amendments to the structure of the law have been made with increasing frequency, it is impossible to suppose that they will not continue, and the law be forced to adapt itself to new conditions of society, and, particularly, to the new relations between employers and employees, as they arise. . . .

We do not wish, however, to be understood as holding that this power is unlimited. While the people of the state may doubtless adopt such systems of laws as best conform to their own traditions and customs, the people of the entire country have laid down in the Constitution of the United States certain fundamental principles to which each member of the Union is bound to accede as a condition of its admission as a state. Thus, the United States are bound to guarantee to each state a republican form of government, and the 10th section of the Ist article contains certain other specified limitations upon the power of the several states, the object of which was to secure to Congress paramount authority with respect to matters of universal concern. In addition, the 14th Amendment contains a sweeping provision forbidding the states from abridging the privileges and immunities of citizens of the United States and denying them the benefit of due process or equal protection of the laws. .

Recognizing the difficulty in defining, with exactness, the phrase "due process of law," it is certain that these words imply a conformity with natural and inherent principles of justice, and forbid that one man's property, or right to property, shall be taken for the benefit of another, or for the benefit of the state, without compensation; and that no one shall be condemned in his person or property without an opportunity of being heard in his own defense.

As the possession of property, of which a person cannot be deprived, doubtless implies that such property may be acquired, it is safe to say that a state law which undertakes to deprive any class of persons of the general power to acquire property, would also be obnoxious to the same provision. Indeed, we may go a step further, and say that as property can only be legally acquired as between living persons by contract, that a general prohibition against entering into contracts with respect to property, or having as their object the acquisition of property, would be equally invalid. . . .

This right of contract, however, is itself subject to certain limitations which the state may lawfully impose in the exercise of its police powers. While this power is inherent in all governments, it has doubtless been greatly expanded in its application during the past century, owing to an enormous increase in the number of occupations which are dangerous, or so far detrimental to the health of employees as to demand special precaution for their well-being and protection, or the safety of adjacent property. While this court has held, notably in the cases of Davidson v. New Orleans, 96 U. S. 97, and Yick Wo v. Hop