hen the Supreme Court thus
undertook to determine the reasonableness of legislation it assumed,
under a somewhat thin disguise, the position of an upper chamber, which,
though it could not originate, could absolutely veto most statutes
touching the use or protection of property, for the administration of
modern American society now hinges on this doctrine of judicial
dispensation under the Police Power. Whether it be a regulation of rates
and prices, of hours of labor, of height of buildings, of municipal
distribution of charity, of flooding a cranberry bog, or of prescribing
to sleeping-car porters duties regarding the lowering of upper
berths,--in questions great and small, the courts vote upon the
reasonableness of the use of the Police Power, like any old-fashioned
town meeting. There is no rule of law involved. There is only opinion or
prejudice, or pecuniary interest. The judges admit frankly that this is
so. They avow that they try to weigh public opinion, as well as they
can, and then vote. In 1911 Mr. Justice Holmes first explained that the
Police Power extended to all great public needs, and then went on to
observe that this Police Power, or extraordinary prerogative, might be
put forth by legislatures "in aid of what is sanctioned by usage, or
held by ... preponderant opinion to be ... necessary to the public
welfare."[29]

A representative chamber reaches its conclusions touching "preponderant
opinion" by a simple process, but the influences which sway courts are
obscurer,--often, probably, beyond the sphere of the consciousness of
the judges themselves. Nor is this the worst; for, as I have already
explained, the very constitution of a court, if it be a court calculated
to do its legitimate work upon a lofty level, precludes it from keeping
pace with the movement in science and the arts. Necessarily it lags some
years behind. And this tendency, which is a benefit in the dispensation
of justice as between private litigants, becomes a menace when courts
are involved in politics. A long line of sinister precedents crowd
unbidden upon the mind. The Court of King's Bench, when it held Hampden
to be liable for the Ship Money, draped the scaffold for Charles I. The
Parliament of Paris, when it denounced Turgot's edict touching the
corvee, threw wide the gate by which the aristocracy of France passed to
the guillotine. The ruling of the Superior Court of the Province of
Massachusetts Bay, in the case of the Writs o