# The Wisconsin Idea/Chapter 9

The Law and Economic Progress
The growing impatience with our courts in America is very evident. The relation of the principles discussed in this book to court procedure needs some further explanation. Thus far the legislature and the administration of the laws have been the subjects of comment and it is with great pleasure that some consideration is now given the Wisconsin courts. But before so doing, a moment's pause to reflect on the whole question of judge-made law, economics and statute making may not be out of place.
We have been so thoroughly disciplined in America to the infallibility of a written constitution as interpreted by the courts, that only recently have we had impressed upon us instance after instance which disclose the hiatus between economic conditions and court decisions, culminating in the decision of the New York court of appeals in the workmen's compensation case. Can it be possible that a court would practically recognize the humanity, justice, right and necessity of a law prepared with the greatest care by the legislature and at the same time declare it unconstitutional? Can it ​be possible that there are standards of right and justice which public opinion recognizes and which violate a constitution, the very bulwarks of justice and right made especially to preserve these very things? Such a situation seems to the layman absurd and nonsensical. Yet has not this hiatus existed for many years and become ingrained into our very system? A thousand cases show that it has. Is not the necessity for devices such as the railroad and industrial commissions, evidence enough that a jurisprudence different from that which we have been teaching in our law schools must be developed? Is it not necessary to teach those who are to become our judges an economic viewpoint in addition to the stiff doctrine of precedent? What, after all, are the advantages of the rulings of commissions? Simply that those rulings are based upon economic facts and not upon precedent. By instituting commissions we have established code law as understood in the old countries and at the same time have laid the foundations for what Roscoe Pound of the Harvard law school calls "Sociological jurisprudence." Are not the rulings, based as they are upon the police power, evidence enough of the fact that the old procedure of our courts, the old doctrine of precedent, is giving way to the newer doctrine of paramount necessity?
The judges are not entirely in fault: a portion of the blame lies elsewhere. Old forms give way but slowly ​to new growths. The astounding rapidity of the progress of modern industrial and commercial machinery has left many a good, just and able judge perplexed and bewildered, with his flag nailed to the mast. Can we expect more from the judges than we do from the equally bewildered economist or legislator?
Particularly have questions relating to the control of great monopolies proved too complex for the courts. However good a court may be, it is a court and not an administrative body. The discontent with the rulings of the commerce court demonstrates the truth of this statement. The attempt by the supreme court to establish some kind of administrative machinery to carry out its rulings in the tobacco case is another case in point. Such matters are not within the province of the court and they have no machinery to handle economic cases of any complexity or magnitude. A recent editorial in the Saturday Evening Post, commenting upon the commerce court, makes the following pertinent statement:—
"Suppose you were building a dam and had employed a competent civil engineer; but your lawyer insisted that all the engineer's orders must be subject to review by him. In the course of some years, if the engineer were sufficiently patient in explaining the import of his various orders the lawyer would understand all the problems involved in the construction of the dam; in short, he would become nearly as expert as the engineer himself.
"However, while the lawyer was acquiring this expert knowledge you wouldn't be apt to make much progress with the dam.
​"That is about the situation created by the new commerce court. The Interstate Commerce Commission, by years of investigation, has become familiar with the problems of transportation. The commerce court act simply makes this expert body subject to a body that does not know so much about transportation. That the general effect of the court will be to paralyze the Commission—at least, until such time as the court itself becomes expert in transportation—seems most likely."
A new procedure has been needed, but that does not excuse the courts from making every effort to meet the matter halfway by dispensing with a large part of the useless load of precedent and dilatory and costly practices adverse to the poor man. They can be blamed for that needless conservation and justly so. They must take even a broader notice of sociological factors or they will be discredited. A great deal of injustice is done before public conscience is sufficiently aroused to check by means of necessary statutes those evils which are constantly arising. But how shall we find a remedy for the rapidly accumulating evils of to-day, when the courts are still further hampered by precedent which is recognized by every one to be as dead as Adam?
Even statute law lags far behind public opinion, but as Judge Dicey says in his book "Law and Opinion,"Italic text:—
"If a statute… is apt to reproduce the public opinion not so much of to-day as of yesterday, judge-made law occasionally represents the opinion of the day before yesterday."
​The story of history is repeated time and time again, as Professor E. A. Ross points out in his "Social Psychology":—
"Law stiffens with the accumulation of precedent, or the growing prestige of dead commentators,—a Gaius or an Ulpian, a Coke or a Blackstone. Says Amos: 'So soon as a system of law becomes reduced to completeness of outward form, it has a natural tendency to crystallize into a rigidity unsuited to the free applications which the actual circumstances of human life demand. The invariable reaction against this stage is manifested in a progressive extension, modification, or complete suspension of the strict legal rule into which the once merely equitable principle has been gradually contracted.' Equity itself, at first an attempt to correct the mechanical operation of law by enlarging the sphere of judicial discretion at the expense of technicality, gets bound by precedents, acquires a legal shell, and becomes merely a competing system of law destined in the end to complete absorption.
"Litigation gets so involved in elaborate procedure that no one dares trust himself to it without the guidance of an expert. A lawsuit, originally a quest for truth and justice, becomes a regulated contest between professionals, to be decided according to the rules of the sport. 'The inquiry is not, What do substantive law and justice require? Instead the inquiry is, Have the rules of the game been carried out strictly? If any material infraction is discovered, just as the football rules put back the offending team five or ten yards, as the case may be, our sporting theory of justice awards new trials, or reverses judgments, or sustains demurrers in the interest of regular play.'"
Indeed, precedent has become so sacred and so confused with the principles the fathers laid down in the ​grandest charter of human rights the world has ever seen, that if one attacks a foolish decision, up pops little Mr. Pettifogger and angrily accuses him of trying to undermine the very foundation of government—the constitution itself.
Many of our law schools have become mere trade schools, and their graduates, instead of being men well founded in the fundamental principles of law, turn out to be attorneys who know all the tricks of the technicalities, but are sadly deficient in a knowledge of the economic conditions, surrounding law.
How can we hope for anything else than a turning to commissions for help, right and justice with such a growing impatience of the justice administered by these tradesmen? The law schools, lacking as they do real appreciation of history and sympathy with democracy, have become, in many instances, seats of Bourbonism. If we are to believe with these men that the only law is the judge-made law, everything is in a static condition and the efforts of the legislature to change conditions are foolish and needless.
The fact is that away down in their hearts a goodly number of lawyers taught in our modern schools really do not believe in representative government at all. That for which our forefathers fought is to them a thing merely to be tolerated. Mr. Charles Bonaparte may not be considered the most conservative lawyer of his ​class in America, and yet in an article in the Green Bag, October 1911, on the "Judges as Law Makers" he says:
"Our statutes are in great part the work of mere vote-hunters and demagogues, enacted for the temporary ends of politicians or artfully contrived to advance the selfish purposes of unscrupulous men, often the very men against whose wrong-doing they pretend to provide safeguards. At best, they are seldom more than rudimentary, embryonic laws, destined and intended to be moulded into their final and practical shapes by the legislative action of the courts in professedly construing but really completing them."
"Our judges are far more capable than are our legislators to give expression and effect to the people's will; they are also more competent and more faithful interpreters of what is the people's will, because far less liable to be misled as to this by mere outcry from the press or the tawdry gabble of agitators; for, ever since the days of the Three Tailors of Tooley Street, the query: 'What is' or 'Who are the people?' has been matter of debate and often of dispute; and, although it has received, for practical purposes, many different answers in different countries and at different times, the legal 'people,' that is to say, that part of the community empowered by law to speak and act for the whole, has been always and everywhere a minority of all the human beings subject to the 'people's' will."
If this is true, why all this bother about representative government? Why not do away with it at once or turn it all over to the courts?
Perhaps the courts are not all wise; perhaps the fathers who made the constitution were wiser than they may seem to the learned product of our so-called ​law schools. It may be that with a few scientific tools in the hands of our legislators, we may find a way out of the difficulty. It may be that we can build up a code of law which may be taught in real law schools, so that they will produce men who will go to the bench believing in some other maxim than "What is, is."
The ridiculous assumption of fatherhood and protectorship which some American judges, in their pomposity, have attained, makes itself felt not only in the courts but in the attitude of practically every lawyer who comes to the legislative halls. It has been the means of retarding the march of progress in legislation and of establishing into the body of our government certain fallacies which have been a real and potential danger to the whole fabric of the state.
Take for example the power of the attorney-general in many states. This official in our state is elected in the same manner as other state officials. Suppose that he is opposed to some law and wishes to remove it from the statute books. The only step necessary is to have the law submitted to him for an opinion and he can declare it unconstitutional.
The supreme court itself has more limitations, in that it must at least have a case presented before it can hold hearings or render a decision. The attorney-general alone has the remarkable power of despatching a law put upon the statute books by the will of the people or ​so modifying it that it is rendered useless and practically void.
But this is not all. Let us suppose the state auditor thinks a certain great commission unconstitutional and refuses its payments while awaiting a decision from the attorney-general. If the attorney-general declares that it is unconstitutional he can then appear for the constitution as protecting the state treasury against the commission itself—the embodiment of a law established by the will of the people and passed by its representatives. Here then is the situation–the state is paying its attorney for appearing against it to destroy a law which it has decreed shall exist! How absurd! And yet this actually occurred in the recent Wisconsin civil service law case, which law was happily sustained by the supreme court. Both the auditor and the attorney-general were doubtless honest in their beliefs and should not bear the blame, but such a system-the result of the spirit of law schools which teach that lawyers and judges are the only.protectors of our liberties in all matters-is certainly at fault. The blame rests largely on the law schools for failing teach the real science of government in relation to these matters and for sending men into our public life who acquiesce in such ideas. Two men were talking about this very case and one, not a lawyer, was protesting that the system which permitted such a situation was not right. ​The other, a prominent lawyer, said, "Why, you are talking like a fool; while I was district attorney of——county, almost my entire time was spent counteracting the work of that fool county board."
Such are the conditions; the remedy is plain, There is a science of statute law which is yet to be developed. The possibility of a jurisprudence in the field of statute law making has been realized by few people. Even in England, where an official draftsman is employed, practically nothing has been done to gather the history of statutory enactment.
Says Professor Ernst Freund in his article upon "Legislation and Jurisprudence":—
"For the vast majority of the acts on the statute books of our States, the reasons or considerations inducing their adoption have not been formulated. There has often been no discussion in the legislature whatever, or if there has been, only incomplete accounts of the debates have been preserved in the daily press. It is otherwise with regard to the more important legislation of congress and, in a number of States, with regard to the enactment of constitutions. In some branches of administrative legislation there are comments and recommendations of official authorities, and revisers' notes furnish for a few States valuable material. The whole amount of this source material is poor as compared with what the official publications of England, France and Germany afford. A great amount of information for legislative history is scattered through the law reports, in cases construing statutes and pointing out defects, which led to appropriate amendments. But the current ​digests pay no particular attention to this feature of the law reports, and the information is therefore not in a readily available form and has not to any considerable extent been utilized.
"As for the history of operation of statutes, there has never been any systematic observation of the working of the laws of persons, property or contracts. Excepting the subjects of bankruptcy, divorce and to some extent of personal injuries, there are no cívil judicial statistics, still less, of course, any information regarding the legal relations that do not reach the courts. In codifying the German civil code, use was made of data collected by the government regarding the prevalence of certain forms of marital contracts and testamentary dispositions; nothing of this kind would be available in the United States. The census bureau in Washington would be the only organization in this country to gather information of this kind, and there is no present prospect of its undertaking so far-reaching and difficult a work. Nor is there any near prospect that our States will undertake the collection of judicial statistics. General impressions instead of exact and systematic observations will, for a long time to come, be the basis upon which the policy of our civil legislation will be built, and there is no promise of any radical advance of jurisprudence in this respect.
"With regard to revenue and police legislation, however, the outlook is much more hopeful. A considerable amount of information is even now available in the official reports of the authorities charged with the administration of the various acts, which naturally deal to a considerable extent with the administrative and judicial aspects of legislation. With the multiplication of controlling and regulating boards, more and more light will be thrown upon the operation of principles of constitutional and administrative law.
"All this material ought to be collated and digested in the same manner as is now done with judicial decisions, and the result ​should be the construction of a body of principles of legislation to supplement the existing body of principles of law. Both in its material and in its method this branch of legal science must differ considerably from the judicial jurisprudence with which we are most familiar; but it is a department of our science equally legitimate and valuable, and destined to grow in importance with the increasing legislative activity of the modern state…
"Exhaustive inquiry into the conditions to be regulated, impartial consideration of all interests concerned, and skilled and careful draftsmanship are equally indispensable requirements to produce legislation that is to avoid both inefficiency and injustice. In England, France and Germany the observance of these conditions is made possible by the fact that the respective governments introduce all important bills, that they have the greatest facilities for ascertaining the facts underlying the proposed measure, and that they command the services of highly qualified officials acting as draftsmen. These conditions cannot be easily reproduced in a country in which the government has no initiative in legislation, and in which it is often very difficult to place the reponsibility for the framing and the introduction of a measure. In recent years a few States have made provision for officials who are to aid in the drafting of bills, and for the systematic collection of information regarding legislation and legislative problems, and a great deal of valuable statistical work is done by official bureaus in the States and in Washington. It is to be hoped that these efforts in the direction of improving and harmonizing methods of legislation will, in the near future, be further extended, and especially that they will receive the active support of legislative bodies."
Besides the data which Professor Freund mentions there is also a large body of material which should be ​gathered, indexed and classified. The expedients which are put into laws to make them effective, the decisions and rules of administrative commissions, the decisions of attorney-generals, bar associations, reports upon codification, model laws or uniform laws—all this data, if made available, would aid the legislator in his task. Such material will help him to find out what he can do, and although the classification of this data is a great task, it should be begun by some one. If the legislator has at hand this data and makes use of it as the judge makes use of the law library and also the skilled draftsmen, his task is made easy and we may hope for better legislation. With the clerical help of a skilled man at his command he can represent his constituents more efficiently.
For those who decry the importance of statute law, let me call attention to the fact that common law means speedy and certain justice and those who profess to revere common law must look upon a statute creating an efficient railroad commission as the rehabilitation of the common law. If this is so, surely the scientific data relating to railroad commissions which can be collected will be of the greatest service to our legislators and to our courts in the formulation of "juridical principles" and in the adjustment to modern conditions of those ancient principles which we have been taught to revere and to believe are the foundation of our liberty and justice.
​Conceding that the legislator is able and honest and that many of the proposed remedies here mentioned will be to a degree efficacious, what remedy can be proposed which will meet the circumstances squarely and help to build up our statute law?
Let us suppose that the supreme court of the United States was deprived for one instant of all cases, precedents and the body of jurisprudence which has accumulated, what would result? Would not the efficiency of our judiciary be greatly diminished? Yet the striking thing is that the man who makes the law, who fits it to economic conditions, has no such body of guiding principles to help him. His task is tenfold-more difficult than that of the judge.
This will seem strange to the lawyer, who will immediately say that he has the decisions of the courts. So he has, but they do him little good. They give him the limitation but often no positive guidance. Let the man who wishes a perfect state law regulating the issue of stocks and bonds of corporations try to draft such a law if he wishes to learn what positive principles, legal or economic, he can sift out from the mass of legal decisions which must be consulted.
Let the legislator try to make a law regulating rebates and he will find at once that the ‘kinds of economic rebates may be many times greater than will fit any definition of the courts. It is necessary to have this ​economic data as well as the legal and we must find out how these laws work so as to profit by the experience of others. This is no small task. It is a far greater problem than that of building up a law library or gathering jurisprudence of the past.
Professor Ernst Freund in a recent pamphlet upon "Legislation and Jurisprudence" says:—
"What does it mean, to say that the fundamental law secures a certain amount of liberty, if it is not said how much, or that it forbids unjust discrimination, if the injustice is not defined? It is the merest commonplace that some restraint of liberty of contract and business, some discrimination, is not merely valid, but essential to the interests of society. Can the fundamental law be satisfied with the proclamation of rights of absolutely indeterminate content, directly contrary to other recognized principles, or is not limitation and definition of some sort absolutely essential to an intelligible rule of law? The courts have given us criticism, denunciation, and condemnation, but no positive guidance. The course of adjudication is marked by divided jurisdictions and divided courts, resulting in a lamentable uncertainty as to the limits of legislative power."
What is needed is a body of jurisprudence or quasi-jurisprudence—the formation of a body of principles directly relating to the whole subject of statute law. The judge goes into the law library and finds the classified law and jurisprudence of the past; the legislator comes for a few months every year to make laws with no such data at his command.
​There is no man for whom the study of comparative legislation will be of more benefit than the business man. Whether we wish it or not, we are taking up the things with which Europe has been working. The great danger is that radicals will force these things upon us without careful study. We see Germany advancing in this industrial progress despite laws which the business man in America would look upon as ruinous. It means that Germany has an administration and conditions which make these laws helpful instead of hurtful to the business man. These laws must not be incorporated into our statutes without any study whatsoever. The study of comparative law and the gathering of data which will show the benefits of these laws should be encouraged by the business man of America.
The necessity for the study of comparative law and comparative institutions in America is demonstrated repeatedly in a department like the legislative reference department. For instance, a man brought to this department for drafting, a bill which was to be introduced in the Wisconsin legislature. Upon research it was found that the bill related to special assessments in the city of Philadelphia. The bill would have been entirely out of harmony with the Wisconsin laws and it would have been a disaster had that law been written into the Wisconsin statutes.
This situation is well depicted in a conversation between a man from Iowa, who had charge of the state ​prison there, and a South Carolinian, who held a similar position in his state. The Iowa man told about the beauty of the Iowa law and how, instead of making hopeless criminals, the idea was to fit up the prisons so well that the men would receive encouragement, hope, and also the decent necessities of life, with occasionally little comforts. The idea, he said, was not to utilize the prisoner by making him a mere hopeless animal. The South Carolina man listened in wonder. "Why," said he, "how do you-all keep them out of prison? If we had such conditions down in South Carolina we would have all of our poor white people and our negroes in jail."
The laws must be adapted to the economic, industrial and social conditions of each community, for the different communities vary in America.
Is it not a sensible and safe thing to create some bureau on a large scale for the study of comparative law and jurisprudence?
Diagram VII is suggestive of the manner in which this comparative law—which may be termed, for lack of a
Diagram VII
better name, "Jurisprudence of statute law"—may be used so that it may be of some direct help to the legislator.
​The mass of data represented by 1, 2, 3, 4, 5, the judge uses in the interpretation of law. The mass of data represented by 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, the legislator uses in the making of law. He must not only use what the judge uses but he must also obtain the facts, sociological and critical.
The legislation throughout the world, the model laws, the cases which interpret them, the opinions of administrative officers, the investigation of economists and the statistics of the actual working of laws—a collection of this data is absolutely necessary and especially so to-day, when economic conditions are so constantly shifting and changing.
Of course the above diagram does not tell the whole story. A law is made not by the courts or by the legislature or still less by administrative bodies. It is made by all of these forces. It is good in such proportion as these bodies are efficient and as their procedure is just and rapid.
However strong a statute may be, if its enforcement is subject to tedious delay caused by outworn procedure the law is not so efficient. If a statute fails of enforcement because of the inefficiency of corrupt administrators, then again so much is taken from our law.
It is plain to any one who has read thus far that in Wisconsin we have begun some sort of a systematic study for the improvement of the general conditions affecting ​legislation. The following diagram (VIII) illustrates just how this study is proceeding. It may provide a suggestion for a new kind of law school, one which will include all of the studies necessary if representative government is to continue to exist and retain the confidence of the people.
Diagram VIII
Here are three great fields for research:—
* Legislative method and statute law.
* Administrative methods. Expert help.
* Real jurisprudence, broad study of legal principles and procedure.
In the centre of the plan is the word "statute." To the right is a square representing the legislature. Now this diagram is to demonstrate that the law is not made by any one body—by the legislature, the administration, ​or the courts—but by allof them. If the legislature constructs the law properly, there is a chance that the administration and the interpretation of the courts will be good. But if the legislation is wrong in the beginning, there is no chance for any other body to rectify it to any degree. So the suggestion is simply this: we must build behind the legislature a body of comparative law and experience to demonstrate how these laws may be better made. To accomplish this we need the architectural department which has been described in the preceding chapter.
This mass of comparative data cannot be properly built up unless our law schools, our political science and economic departments, coöperate so that we may study the principles of statute law, of legislative procedure, and the whole machinery of law-making. Our schools must go even further than this; they must study scientifically the whole question of administration. In the diagram on page 251, "A" must accompany "B." Our administrative bodies must be based upon solid principles and to thoroughly understand these principles of administration, we must study and-discuss them. The establishment of the "Training school for public service" in New York City, connected with the "Bureau of municipal research," is an example of what may be done in this field. The time has passed when political scientists only talk of these things; they must be studied close at ​hand and something done speedily to remedy conditions. We must study the procedure of the courts in reference to the actual making of the law and its administration; and our law schools must institute departments for research into law. Until such departments are established in our law schools, they will continue to turn out attorneys, not lawyers. We have here in Wisconsin made a slight step forward in the collection of material and its classification in the legislative. reference department. Students not only from the state but from the entire country are availing themselves of its material. As examples of "B" we have the work of the expert commissions and classes in the principles of administration in the university and the public affairs board created by the 1911 legislature, having for its duties the reorganization of the administrative bureaus and the establishment of efficiency records and uniform accounts. Illustrative of "C," we have comparatively little, but the regents of the university have set aside a small fund for the study of criminal procedure. University professors connected with the law school have been actively working in this field. A strong branch of the Society for the reform of criminal procedure exists and an active campaign is being carried forward. It must be said, however, that in none of the fields, "A" "B," or "C," has the law school given the help it should. It is, however, to the views of Wisconsin judges that we owe the forward movement in the work of "C."
​A page from the catalogue of the University of Wisconsin illustrating courses which relate to public matters.
* The Theory and Practice of Legislation. A study of the methods of procedure of legislative bodies, and the preparation of the subject matter and form of bills. The legislature is in session from January to June, in the odd-numbered years. Throughout the year; Tu., Th., 11. Mr. Lloyd Jones, Mr. McCarthy.
* Comparative Study of Constitution Making. Mr. Lowrie.
* Teachers' Course. Methods of teaching government in secondary schools. Second semester; Th., 4 to 6. Mr. McBain.
* Judicial Administration. A study of the organization, jurisdiction and actual operations of the courts, with an inquiry into their defects in the administration of justice. First semester; Tu., Th., 2:30. Mr. Hall.
* Latin-American Political Institutions. A comparative study of the constitutional and administrative systems of the Latin-American Republics. First semester; M., W., F., 10. Mr. Reinsch.
* Current Political Topics. Study of current political problems, with training in the discriminating use of sources and in effective literary presentation. A training course designed for students preparing for journalism. Throughout the year; Tu., Th., 10. Mr. Bailey, Mr. Curtis.
* Practical Bill Drafting. A study of the technique of bill drafting, with practice in drafting actual measures. Open to senior and graduate students. Second semester; M., F., 7. Mr. McCarthy, Mr. Lloyd Jones.
* Rural Government. A study of the development and present ​condition of county, township, and village government. First semester; M., W., F., 11. Mr. Bailey.
* Conservation of Natural Resources. A study of the problems of conservation and reclamation in the United States. Second semester; Tu., Th., 8. Mr. Bailey.
* American Diplomacy. A study of the principal contemporary problems of the United States in foreign affairs; the participation of the United States in the development of International Law; the organization of the diplomatic service; the product of diplomatic action. (Given 1910-1911 and alternate years.) Mr. Reinsch.
* Contemporary International Politics and Diplomatic Problems. A study of the present grouping of the powers and their mutual relations. First semester; W., M., F., 11. (Given 1911-1912 and alternate years.) Mr. Reinsch.
* Public Utilities. A comparison of public regulation and public and private ownership of municipal utilities in American states and foreign countries, including constitutional and judicial limitations, delegation of legislative power to commissions, physical valuation, reasonable rates and service, organization of public employees, cost, efficiency, social and political results. First semester; M., W., F., 8. Mr. Commons, Mr. Dudgeon.
Wisconsin Judges
It has been said previously that the Wisconsin legislature would probably not apply the recall to judges. We have been fortunate, indeed, to have on our bench men who have taken as broad a view of constitutional law as any court in this country. This fact is well known ​throughout the country and need not be dwelt upon here. Our judges are elected for long terms on a non-partisan basis and if the recall were in force in this state it would be impossible to recall any of them. In striking contrast to the New York workmen's compensation decision are herewith presented excerpts from Judge Winslow's opinion in the Wisconsin case. For its boldness as well as literary merit, it stands as a monument of its kind and a living rebuke to the pettiness and chicanery exhibited in courts like those of Illinois and California.
"In approaching the consideration of the present law we must bear in mind the well established principle that it must be sustained unless it be clear beyond reasonable question that it violates some constitutional limitation or prohibition.
"That governments founded on written constitutions which are made difficult of amendment or change lose much in flexibility and adaptability to changed conditions there can be no doubt. Indeed, that may be said to be one purpose of the written constitution. Doubtless they gain enough in stability and freedom from mere whimsical and sudden changes to more than make up for the loss in flexibility, but the loss still remains, whether for good or ill. A constitution is a very human document, and must embody with greater or less fidelity the spirit of the time of its adoption. It will be framed to meet the problems and difficulties which face the men who make it and it will generally crystallize with more or less fidelity the political, social and economic propositions which are considered irrefutable, if not actually inspired, by the philosophers and legislators of the time; but the difficulty is that, while the constitution is fixed or very hard to change, the conditions and problems ​surrounding the people, as well as their ideals, are constantly changing. The political or philosophical aphorism of one generation is doubted by the next, and entirely discarded by the third; the race moves forward constantly and no Canute can stay its progress.
"Constitutional commands and prohibitions, either distinctly laid down in express words or necessarily implied from general words, must be obeyed and implicitly obeyed so long as they remain unamended or unrepealed. Any other course on the part of either legislator or judge, constitutes violation of his oath of office; but when there is no such express command or prohibition, but only general language, or a general policy drawn from the four corners of the instrument, what shall be said about this? By what standards is this general language or general policy to be interpreted and applied to present-day people and conditions?
"When an eighteenth century constitution forms the charter of liberty of a twentieth century government must its general provisions be construed and interpreted by an eighteenth century mind surrounded by eighteenth century conditions and ideals? Clearly not. This were to command the race to halt in its progress, to stretch the state upon a veritable bed of Procrustes.
"Where there is no express command or prohibition, but only general language or policy to be considered, the conditions prevailing at the time of its adoption must have their due weight, but the changed social, economic and governmental conditions and ideals of the time, as well as the problems which the changes have produced, must also logically enter into the consideration, and become influential factors in the settlement of problems of construction and interpretation.
"These general propositions are here laid down, not because they are considered either new or in serious controversy, but ​because they are believed to be peculiarly applicable to a case like the present, where a law which is framed to meet new economic conditions and difficulties resulting therefrom is attacked principally because it is believed to offend against constitutional guarantees or prohibitions couched in general terms, or supposed general policies drawn from the whole body of the instrument."
Again:—
"The next important contention is that the law is unconstitutional because it vests judicial power in a body which is not a court and is not composed of men elected by the people, in violation of those clauses of the state constitution which vest the judicial power in certain courts and provide for the election of judges by the people, as well as in violation of the constitutional guarantees of due process of law. It was suggested at the argument that the Industrial Commission might perhaps be held to be a court of conciliation, as authorized to be created by Section 16 of Article VII of the state constitution, but we do not find it necessary to consider or decide this contention. We do not consider the Industrial Commission a court, nor do we construe the act as vesting in the Commission judicial powers within the meaning of the Constitution. It is an administrative body or arm of the government which in the course of its administration of a law is empowered to ascertain some questions of fact and apply the existing law thereto, and in so doing acts quasi-judicially, but it is not thereby vested with judicial power in the constitutional sense.
"There are many such administrative bodies or commissions, and with the increasing complexity of modern government they seem likely to increase rather than diminish. Examples may be easily thought of,—town boards, boards of health, boards of review, boards of equalization, railroad rate commissions, and public ​utility commissions all come within this class. They perform very important duties in our scheme of government, but they are not legislatures or courts. The legislative branch of the government by statute determines the rights, duties, and liabilities of persons and corporations under certain conditions of fact, and varying as the facts and conditions change. Manifestly the legislature cannot remain in session and pass a new act upon every change of conditions, but it may and does commit to an administrative board the duty of ascertaining when the facts exist which call into activity certain provisions of the law, and when conditions have changed, so as to call into activity other provisions. The law is made by the legislature, the facts upon which its operation is dependent are ascertained by the administrative board. While acting within the scope of its duty, or its jurisdiction, as it is sometimes called, such a board may lawfully be endowed with very broad powers, and its conclusions may be given great dignity and force, so that courts may not reverse them unless the proof be clear and satisfactory that they are wrong."
Proceeding on an entirely different theory and yet setting forth a more startling recognition of new, economic forces in legislation, Judge Marshall chides the legislature on the fact that it has not previously subjected to the court this question of workmen's compensation. The judge holds that the constitution must, through its very nature, contain power of this sort and practically invites the legislature to test the constitution if the legislature has a law which is made in accordance with economic industrial right. The judge evidently believes that the constitution was made to include a body of rights broad ​enough to last for all time and that the burden of proof is on the judge who would declare unconstitutional a law within the broad words of the preamble of the constitution.
"How are we to determine when the purpose of a law, in the field of police power, and unaffected by any express prohibition, is legitimate? It seems the answer is easy. Look first to the purpose of the Constitution, found in the declaration, 'Grateful to Almighty God for our freedom, in order to secure its blessings, form a more perfect union, insure domestic tranquillity and promote the general welfare' we 'do establish this Constitution.' Then to the central thought—the very superstructure—upon which the whole was builded: 'All men are born equally free and independent and have certain inherent rights, among those are life, liberty, and the pursuit of happiness.' There is voiced a broad spirit, covering as this court has, in effect, many times said, a field as limitless as are human needs. The language was not used for mere rhetorical ornamentation or effect, but to suggest the permissible scope of legislation in the zone of general welfare, its extent and its limitations…
"So here, as it seems, the initial question was this: Is the purpose of the law legitimate, within the broad dominating spirit mentioned? The answer must be yes, as the manifest purpose is to promote every element of the central thought of the Constitution. Anything fairly within that has always been and must, necessarily always, be held legitimate. Keeping in mind that in the selection of means the Legislature has a very broad comprehensive field in which to freely make a choice, the next question is, Are the means contemplated reasonably appropriate to the end to be attained? Not are they the best means, but are they proper ​means, in that they are not within any express prohibition and tend to conserve rather than to destroy? All must agree in the affirmative on that in harmony with the best thought of all the more civilized nations of Europe. The difficulty here has been, want of appreciation of the great economic truth, that personal injury losses incident to industrial pursuits, as certainly as wages, are a part of the cost of production of those things essential to or proper for human consumption, and the more direct they are incorporated therein, the less the enhancement of cost and the better for all."
Again, in the domain of procedure, listen to the wise words of Chief Justice Winslow on the delay of justice:—
"The ancient doctrine that the accused could waive nothing was unquestionably founded upon the anxiety of the courts to see that no innocent man should be convicted. It arose in those days when the accused could not testify in his own behalf, was not furnished counsel, and was punished, if convicted, by the death penalty or some other grievous punishment out of all proportion to the gravity of his crime. Under such circumstances it was well, perhaps, that such a rule should exist, and well that every technical requirement should be insisted on, when the state demanded its meed of blood. Such a course raised up a sort of barrier which the court could utilize when a prosecution was successful which ought not to have been successful, or when a man without money, without counsel, without ability to summon witnesses, and not permitted to tell his own story, had been unjustly convicted, but yet under the ordinary principles of waiver, as applied to civil matters, had waived every defect in the proceedings.
"Thanks to the humane policy of the modern criminal law we have changed all these conditions. The man now charged with ​crime is furnished the most complete opportunity for making his defence. He may testify in his own behalf; if he be poor, he may have counsel furnished him by the state, and may have his witnesses summoned and paid for by the state; not infrequently he is thus furnished counsel more able than the attorney for the state. In short, the modern law has taken as great pains to surround the accused person with the means to effectively make his defense as the ancient law took pains to prevent that consummation. The reasons which in some sense justified the former attitude of the courts have therefore disappeared, save perhaps in capital cases, and the question is, Shall we adhere to the principle based upon conditions no longer existing? No sound reason occurs to us why a person accused of a lesser crime or misdemeanor, who comes into court with his attorney, fully advised of all his rights and furnished with every means of making his defense, should not be held to waive a right or privilege for which he does not ask, just as a party to a civil action waives such a right by not asking for it.
"Surely the defendant should have every one of his constitutional rights and privileges, but should he be permitted to juggle with them? Should he be silent when he ought to ask for some minor right which the court would at once give him, and then when he has had his trial, and the issue has gone against him, should he be heard to say there is error because he was not given his right? Should he be allowed to play his game with loaded dice? Should Justice travel with leaden heel because the defendant has secretly stored up some technical error not affecting the merits, and thus secured a new trial because forsooth he can waive nothing? We think not. We think that sound reason, good sense, and the interests of the public demand that the ancient strict rule, framed originally for other conditions, be laid aside, at least so far as all prosecutions for offenses less than capital are concerned. We ​believe it has been laid aside in fact (save for the single exception that trial by a jury of twelve cannot be waived unless authorized by a specific law) by the former decisions of this court.
"It is believed that this court has uniformly attempted to disregard mere formal errors and technical objections, not affecting any substantial right, and to adhere to the spirit of the law which giveth life rather than to the letter which killeth. It may not always have succeeded; it is intensely human, but since the writer has been here he knows that the attempt has been honestly made.
"In this line the court is glad to welcome legislative assistance and approval. By ch. 192, Laws of 1909 (sec. 3072m, Stats.), it is provided that no judgment, civil or criminal, shall be set aside or new trial granted for any error in admission of evidence, direction of the jury, or any error in pleading or procedure, unless it shall appear that the error complained of has affected the substantial rights of the party complaining. How much this adds to the provisions of sec. 2829, which has been on the statute books since 1858, is not entirely clear. At least it shows the legislative intent to specifically apply the law to criminal actions. Its terms are clear, and will unquestionably assist the court in its efforts to do substantial justice in all actions, either civil or criminal, without regard to immaterial errors or inconsequential defects. This court will loyally stand by this law, and will earnestly endeavor to administer it so as to do equal and exact justice so far as human effort can accomplish that end." (Hack v. State, 141 Wis. 346, pp. 351-353.)
Judge Marshall, who for many years has withstood technicalities and delay of the law in no uncertain terms, has given the writer permission to use the following description of the work of our courts:—
"Is there not some danger of the public being misled by the agitation respecting inefficiency of criminal procedure? It should not be thought because of apparent failures of justice in a case now and then, and apparently unnecessary delay and expense in disposing of criminal cases in some of the large cities, that the administration of the law in Wisconsin can be judged thereby. In this state, persons accused of crime are, as a rule, promptly tried, and, doubtless, are convicted when they ought not to be, quite as often as they are acquitted when they ought not to be. Criminal cases are removable to the Supreme Court at very moderate expense and when so removed are generally and finally disposed of in from two to five months. Furthermore, the number of cases so removed are very few as compared with the total number tried.
"It will greatly surprise some persons to be told, as the fact is, that during the period of six years covered by the last twenty-two volumes of Supreme Court reports, there have been no less, probably, than four thousand trials of criminal cases in this state and three thousand convictions, while only one hundred and one cases were removed to the Supreme Court, or about two and one-half per cent of the number tried and five per cent of the number of convictions. Moreover, not more than five per cent of the total of all kinds of cases taken to the Supreme Court were criminal cases. Of those four were reversed, or one and one-third per cent of cases tried resulting in convictions.
"The foregoing can be better appreciated by considering that removals of criminal cases to the Supreme Court have averaged about one to a county once in four years, and reversals, one to a county once in ten years.
"About one-third of all the criminal cases removed to the Supreme Court during the period named, were from Milwaukee county, and yet the yearly number from there has been but about ​five. Two-thirds of all removals were from Milwaukee county and five other circuit jurisdictions, leaving only about thirty cases from eighteen other trial jurisdictions, including county and municipal judges, or on the average of one case every three years. From one circuit judge's jurisdiction, and those of several judges of inferior courts, there has not been a removal of a criminal case to the Supreme Court during the six years.
"A careful examination of the opinions of the Justices will show that, there were many affirmances regardless of plain errors, that being intended to be the course where it did not appear that, had the error not occurred, the result might probably have been otherwise. While it may be that a reversal occurred, now and then, on a ground which some would regard technical or inconsequential, the rule has been otherwise, and as to exceptions, if there be such, they occurred from an honest reasonable difference of opinion as to the effect of the errors on the result, or an honest reasonable belief that they were neither technical nor inconsequential.
"There will be found on the average, a fraction less than two reversals in criminal cases in each of the last twenty-two volumes of reports, containing a little less than one hundred cases of all kinds, including five criminal cases.
"In reading the foregoing, it must be remembered that the result on appeal in each case, with but few exceptions, was concurred in by all. So the proportion of opinions in cases reversed, written by any particular Justice, does not have any particular significance."
If these great judges recognize that justice must be made speedy, that ancient form must give way to modern, that the constitution is broad enough to cover all injus​tice and wrong, is it not about time that our law schools are awakening to the situation? The recent progress made along this line at Harvard under Professor Roscoe Pound, and at Pennsylvania under Dean Lewis, and the establishment of the "Bureau of legislative drafting" in connection with Columbia university are excellent signs of the times. The establishment of a legislative reference bureau as part of the work of Harvard and the establishment of numerous municipal reference departments in various universities modelled to some extent after the Wisconsin bureau, are also encouraging.
But we are in the midst of great struggles in America; the power of the courts in these contests must be well defined. Good men die and public opinion cannot often bear evenly and justly upon judicial bodies. The struggle for new forms and to meet new conditions is Titanic—witness the Standard oil and the tobacco cases. Even mightier struggles are to come, if the readjustment of economic conditions and law is made to the satisfaction of the people. Says the great German jurist, Dr. Rudolph von Ihering, in the "Struggle for Law":—
"This struggle reaches its highest degree of intensity when the interests in question have assumed the form of vested rights. Here we find two parties opposed each to the other, each of which takes as its device the sacredness of the law; the one that of the historical law, the law of the past; the other that of the law which is ever coming into existence, ever renewing its youth, the eternal, ​primordial law of mankind. A case of conflict of the idea of law with itself which, for the individuals who have staked all their strength and their very being for their convictions and finally succumb to the supreme decree of history, has in it something that is really tragic. All the great achievements which the history of the law has to record—the abolition of slavery, of serfdom, the freedom of landed property, of industry, of conscience, etc., all have had to be won, in the first instance, in this manner by the most violent struggles, which often ldsted for centuries. Not unfrequently streams of blood, and everywhere rights trampled under foot, mark the way which the law has travelled during such conflict. For the law is Saturn devouring his own children. The law can renew its youth only by breaking with its own past. A concrete legal right or principle of law, which, simply because it has come into existence, claims an unlimited and therefore eternal existence, is a child lifting its arm against its own mother; it despises the idea of the law when it appeals to that idea; for the idea of the law is an eternal becoming; but that Which Has Become must yield to the new Becoming, since—Alles was entsteht,
'Ist werth dass es zu Grunde geht.'"
Let us suppose that the Wisconsin court followed the New York court. Let us suppose that the New York courts again and again disregarded the will of the people, that they overreached themselves and bound the legislature hand and foot. What are we going to do about it? In the milder method of usurpation of power by decisions the courts have encroached upon the field of legislation—and is this not the true reason for the dis​content with the courts? When this is true, is there not another legislative body above and beyond that elected by the people? The chief legislative problem before us in many states—the problem which has required all our best energy in the past—is the creation of fictions which will in some way allow the acts demanded by the people and acknowledged to be necessary, to exist on our statute books, in spite of the limits of the federal and state constitutions as interpreted by thousands of decisions. It is not my purpose to go into history. It is generally understood that the United States constitution never gave the right to the courts to declare laws unconstitutional, but that the right has come mainly from the case of Marbury vs. Madison, 1803. However wise that decision may have been at the time, the assumption of control over legislation and consequently the assumption of legislative power by our courts, must now be regarded as the most unfortunate expansion of our unwritten constitution which has ever taken place in this country. The field of the legislature has been gradually narrowed and more and more responsibility taken from it. How often we have seen just and right legislation checked or choked by an array of decisions which seem to block the way at every step! How often the powers opposed to all progress have cited these with mighty dignity until the legislature, benumbed and confused, has yielded to what seemed to be an insurmountable mass of judge-made ​wisdom! The constitution has become discredited in the eyes of the people; is looked upon as an instrument to stop all progress toward regulation of what ought to be controlled, and yet such is far from the fact in many cases. It is the spurious decisions—the dead weights of precedent—which are in the way, not the constitution itself.
But the system is here; its menace is always present and legislation or the science of legislation cannot go forward until something is done to remedy these conditions. Something must be done for the safety of our courts because sooner or later the people will say, "If you legislate as well as interpret—if you are a legislative body, we cannot allow you to exist unless we have control over you." If the recall of judges is rampant in the land there is a reason for it, and, from a theoretical standpoint, a sound one; it simply means control of a legislative body. The constitutional initiative means the same thing. If the judges have rendered decisions which tie the legislature and the people hand and foot, a change in the constitution, rising from the people and eradicating the decisions which obstruct the way, can be effected through this new device. In either case, the fundamental reason is the same; the judges are usurping legislative functions, and a legislative body which is neither elected nor recalled is inconceivable in a republic. The writer is not sure but that a recall applied to a judge who has gone into the legislative field is a good thing and may be made prac​tical. If our government is a government of checks and balances and the courts may declare a law passed by a legislature unconstitutional, who is to pass upon an unconstitutional decision of the judges? Would it not be a good device in New York to have on the ballot at the next election the question, Is the decision of the court of appeals in the workmen's compensation case constitutional?—and let the people from whom this constitution sprung have as much interpretive power as the judges whom they elect? Does any one doubt but that the people of New York would sustain that law overwhelmingly? If so, what better test have we of its constitutionality? It might be advantageous to have some provision so that in case the decisions of a judge were overturned several times by popular vote, the judge would be subject to recall as being unable to interpret the constitution. The writer is a firm believer in representative government and is of the opinion that the legislature will never reach its highest dignity and responsibility until some device is used to hold the court within its proper sphere.
Think of the confusion that is now arising in our country because of this power! Ten, yes, even twenty years after a law has been enacted, after property rights have grown under it, suddenly there may be a decision declaring that law unconstitutional. Could anything be more conducive to chaos? What has been said above ​applies with double force to the federal courts. There is no way of changing the constitution except by that supreme legislative body, the supreme court of the United States. Would it not be better to change the fifth article of the United States constitution so that the constitution could be modified or at least some of the decisions which have been made relating to it be effaced? Could not such an alteration be brought about by providing, for instance, for a change by a majority of congress and a majority of the states instead of a system which no one can change save the supreme legislature, stimulated by raging and threatening public opinion? Would it not be better for the safety of the courts in the long run to allow this little leeway? Meanwhile, if, by the establishment of a real study of jurisprudence in our law schools, expert help and the collection of scientific data for our legislators, we can help our law-makers to put the will of the people into a noble, clear, dignified form, we can aid greatly to a solution of this problem. If the people show that they desire a certain piece of legislation, the legislature, whatever may be the accumulation of decisions to be surmounted, should not hesitate to pass it in a form economically and technically correct and submit it to our courts—and let them destroy it at their peril! Fortunate circumstances in this state, of which there has been some mention, have made it possible to place before our court the principal statutes, ​not without error it may be said, but always in fairly good technical shape. The thorough study of the economic conditions made by our legislators before those statutes were enacted, and the patience with which hearings have been held and testimony taken, have had their reward in the harmony between the courts and the legislature so long observable in the state. It is good for the legislature, and for the courts as well, to have the care and the help which comes from some machinery at the hand of the legislator to help him to carry out the will of his constituents.