220

The Green Bag

justify. It is difficult to understand why the solicitude of the courts over the interstate powers of Congress should be so great as to preclude the state from prohibiting a person from ordering liquor shipped to him from another state or from interfering with that liquor while in transit, but should nevertheless permit the state to prohibit the making of an offer to make a contract for such ship ment. Surely in the later case as in the former the state is regulating interstate commerce. Is there not a serious ques tion indeed whether, after all, the art of refinement and discrimination has not been carried too far by our courts, and whether more frankness is not now being imperatively demanded. There is nothing sacred in a theory of law or in a governmental policy which has outlived its usefulness or which was radically wrong in the beginning. Respect for the courts.it is true, maybe won by a respect on their part for the precedents of the past and an obedience to the law and a reasonable consistency. Much of our business stability rests upon a wise conservatism. But after all truth is truth and logic is logic, and a complete change of front is not the less complete because justified by an attempted reconciliation with prior decisions which ignores logic and distorts premises. After all it is obedidience to the letter and spirit of the Constitution that is required of the courts, and not to any particular con struction which they or their predec essors may have put upon it. The question is What is the law and what is the true public policy? not What did Mr. Justice So and So say about it? What is the Constitution? not How did So and So construe it? Many of the constructions of the past were adopted under totally different social and indus trial conditions than now prevail, and

are unadapted to our modern life and commercial and national growth. Many, too, were adopted without suffi cient deliberation or information. There is no ground for the fear so often evi denced of overruling prior decisions. The public have lost their respect for the law, not because it has from time to time been changed to meet new condi tions or because long standing errors have been now and then corrected, but because of its growing refinement and incomprehensibility. Each new dis tortion, each new surrender of basic principle and of irresistible logic, paves the way for still further surrender, makes the law less and less certain, and en courages that class of lawyers, now only too common, whose main business seems to be to teach their clients how to violate the basic principles of society and human kinship and by the weapons of delay and obstruction to hinder if not prevent all progress and all reform. The writer believes that the only logical theory to be deduced from the real spirit, though not necessarily from the logic of the decisions, and a survey of our historical growth and advance ment, is that from the beginning the Constitution recognized people rather than states, but people who had surren dered or rather conceded to the central government powers which were com mercial and national only and had chosen in all matters which were local and social to remain under the sover eignty of the states to which they belonged and with which they had united. We cannot get away from the theory of the social civil compact in society, whatever we may do. Whenever a new state is formed, whenever a con stitution is adopted, the compact is made. Whenever a new emigrant be comes a citizen and is naturalized, he in turn promises and is promised. There