18 "Prohibitions del Roy," 12 Rep. 63.
While the lawyer believes that the principles of law are absolute, eternal, and of universal validity, and that law is found, not made, the people believe no less firmly that it may be made and that they have the power to make it. While to the lawyer the State enforces law because it is law, to the people law is law because the State, reflecting their desires, has so willed. While to the lawyer law is above and beyond all will, to the people it is but a formulation of the general will. Hence it often happens that when the lawyer thinks he is enforcing the law, the people think he is overturning the law. While the lawyer thinks of popular action as subject to legal limitations running back of all constitutions and merely reasserted, not created, thereby, the people think of themselves as the authors of all constitutions and limitations and the final judges of their meaning and effect. This conflict between the lawyer's theory and the politician's theory weakens the force of law. The lawyer's theory often leads him to pay scant attention to legislation or to mold it and warp it to the exigencies of what he regards as the real law. But to those who do not share his theory, this appears as a high-handed overriding of law, and the layman, laboring under that impression, is unable to perceive why the lawyer should have a monopoly of that convenient power. On the other hand, the people's theory that law is simply a conscious product of the human will tends to produce arbitrary and ill-considered legislation impossible of satisfactory application to actual controversies.
Hence, I take it, absolute theories, derived from the eighteenth century, are the principal source of friction in the relation of courts to legislation. Already the causes of this friction are disappearing, and the resultant difficulties in our legal system are going with them. More careful legislation, proceeding upon better lines and based upon better understanding of what legislation may achieve and should attempt on the one hand and the disappearance on the other hand of the notion of the finality of the common law are now things, if not of the present, certainly of the immediate future. And at the same time the judicial attitude toward legislation has changed visibly. Comparing the reports of the decade from 1880 to 1890 with the reports of to-day, this change becomes very striking, and a progressive liberalization is manifest as one looks over the decisions from 1890 to 1910. On the whole the movement is going forward more rapidly in the courts than in the legislatures, though some states here are conspicuous exceptions. Not a little modern social legislation, as it is too often enacted, will call for the highest powers of the strongest judges that can be put upon the bench, if we are to make it effective as part of a legal system.
Turning now to interpretation, I must make it clear at the outset that I refer to genuine interpretation, to a genuine ascertainment of the meaning of the legislative provision. This problem, however, is so closely connected with the more difficult one of application of the provision to the cause in hand that to some extent we may look at them together. In the past the whole complex of problems, finding a rule to apply, interpreting the rule when found, and applying it, has been called interpretation. This has led to an impression that all interpretation involves the legislative and personal element which belongs only to the finding of law. Hence the present popular demand that our courts go to the extreme in spurious interpretation of constitutional provisions while at the same time complaint is made that statutes are nullified by the ordinary process of finding and applying the law. We cannot keep before us too clearly that finding the law-if you will, judicial lawmaking-is one thing, and true interpretation quite another. In dealing with statutes, since from the nature of the case all causes could not be foreseen, this finding the law or judicial lawmaking or spurious interpretation is necessary unless we would have the court decide by throwing dice or casting lots. But in constitutional law, where the issue is simply whether the legislative act must yield to the supreme law of the land embodied in a constitutional provision, the question can only be one of genuine interpretation. In the first decision upon the legal tender act, indeed, and in other cases occasionally, implied limitations upon legislative power have been derived by analogy. But such implied 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 constitutional 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 position 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 philosophical and political and legal charts for all time, proper enough in men who believed they had achieved finality in thought in each connection. 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 conformed thereto had there been no such constitutional provisions. The chief complaint during this period was that the courts extended the possibilities of governmental action by interpretation; 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 national, 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 enactment. 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 are not desired in our day. It is true they have been aggravated to some extent by taking them to be declaratory and then reasoning from assumed first principles instead of applying the provisions themselves. But that practice has been disappearing with the wane of the idea of the finality of the common law, and the current reports show that with a few conspicuous exceptions, 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.