r of paternalism
and the organic relation of the citizen to the State or of _laissez
faire_. It is made for people of fundamentally differing views, and the
accident of our finding certain opinions natural and familiar or novel
and even shocking ought not to conclude our judgment upon the question
whether statutes embodying them conflict with the Constitution * * * I
think that the word 'liberty,' in the Fourteenth Amendment is perverted
when it is held to prevent the natural outcome of a dominant opinion,
unless it can be said that a rational and fair man necessarily would
admit that the statute proposed would infringe fundamental principles as
they have been understood by the traditions of our people and our
law."[89]

In part, Justice Holmes's criticism of his colleagues was unfair, for
his "rational and fair man" could not function in a vacuum, and, in
appraising the constitutionality of State legislation, could no more
avoid being guided by his preferences or "economic predilections" than
were the Justices constituting the majority. Insofar as he was resigned
to accept the broader conception of due process of law in preference to
the historical concept thereof as pertaining to the enforcement rather
than the making of law and did not affirmatively advocate a return to
the maxim that the possibility of abuse is no argument against
possession of a power, Justice Holmes, whether consciously or not, was
thus prepared to observe, along with his opponents in the majority, the
very practices which were deemed to have rendered inevitable the
assumption by the Court of a "perpetual censorship" over State
legislation. The basic distinction, therefore, between the positions
taken by Justice Peckham for the majority and Justice Holmes, for what
was then the minority, was the espousal of the conflicting doctrines of
judicial notice by the former and of presumed validity by the latter.

Although the Holmes dissent bore fruit in time in the form of the
Bunting _v._ Oregon[90] and Muller _v._ Oregon[91] decisions overruling
the Lochner Case, the doctrinal approach employed in the earlier of
these by Justice Brewer continued to prevail until the depression in the
1930's. In view of the shift in the burden of proof which application of
the principle of judicial notice entailed, counsel defending the
constitutionality of social legislation developed the practice of
submitting voluminous factual briefs replete with medical or other