The subject of equitable relief against defamation and injuries to personality is beset with inherent difficulties quite apart from those raised unnecessarily by the current of dictum since Gee v. Pritchard. Relief against defamation involves the limits of freedom of publication and the policy of trial by jury in cases of libel. Relief against injury to privacy and related wrongs involves unsettled questions as to the existence and scope of the legal right. Many of the difficulties growing out of the need of balancing conflicting interests and the practical limitations upon securing interests of personality through legal machinery, which make the law cautious and bring about a back-handed protection of personality by "parasitic damages," 117 operate to produce a similar halting and oblique course in equity. Equitable protection of personality against injuries to social and political relations involves danger of undue meddling with the internal concerns of social, political, and religious organizations. But we have proceeded long enough upon fictions and "technical bases" of jurisdiction. A century of judicial experience since the cautious dicta and bold action of Lord Eldon in Gee v. Pritchard has taught us much. More is to be gained by perceiving critically the interests to be secured and the conflicting interests to be balanced against them, by looking the difficulties squarely in the face and by determining what may be done to secure and protect individual personality in view of the difficulties, than by continued lip service to a doctrine laid down only to be evaded. HARVARD LAW SCHOOL. Roscoe Pound. lation, and it may be conceded that each member of a political party has a right to a voice in such primaries, and to seek nomination for public office at the hands of his party. But when he is denied these rights, or unreasonably hampered in their exercise, he must look to some other source than a court of equity for redress. To hold otherwise would establish what could not but prove a most mischievous precedent, and would be a long step in the direction of making a court of equity a committee on credentials, and the final arbitrator between contesting delegations in political conventions. The voters themselves are competent to deal with such matters without the guiding hand of the chancellor, and it will make for their independence, self reliance and ability for self-government, to permit them to do so. It is true, they may make mistakes, but courts themselves have been known to err." 117 See my paper, Interests of Personality, 28 HARV. L. REV. 343, 359 ƒƒ., 454 ƒ. THE CONSTITUTIONAL OPINIONS OF JUSTICE HOLMES ALLED upon late in life to teach constitutional law, a great teacher of property law, after a brief trial, gave it up in despair on the ground that constitutional law "was not law at all, but politics." John Chipman Gray was right - if his norm of law was the rule against perpetuities; not, however, if we concede it to be the law's province also to settle controversies that involve more complex interests, permitting of flexibility in application to make the necessary accommodation to the diversities and changes in the facts of life. We find a growing extension of this sphere of law, a gradual displacement of force by law, bringing not only the peaceful settlement of controversies as isolated instances, each on its own bottom, but settlement based on certain common considerations beyond the mere avoidance of force.1 Undoubtedly, such a field of law by the very nature of the issues sought to be settled, by reason of the interests sought to be enforced, leaves wider scope and calls for the exercise of a broader experience than the familiar domains of the common law. Such, in effect, has been that body of decisions contained in the two hundred and forty volumes of United States Reports which we call American Constitutional Law. To be sure we are in the field of greatest flexibility. Undoubtedly the Constitution is what the Supreme Court interprets it to be- and constitutional interpretation inescapably opens a Pandora's box of difficulties. But there are differences between this body of constitutional decisions and the judgments of a Kadi or the foreign policies of a Secretary of State. Just these differences entitle the decisions to be called law. But the necessary flexibility makes the personality of the justices so much more important in their decisions on constitutional law than in questions of property or corporation law. There is thus marked opportunity for individual influence in the collective judgment which a Marshall exercised. Of course he did 1 See, for instance, the line of thought opened up by Mr. Justice Higgins in "A New Province for Law and Order," 29 HARV. L. REV. 13. not attain single-handed, and we know that among his associates were probably two men of more commanding equipment as common law lawyers. But it is to Marshall that we owe the foundations of our national power as they were laid. From Marshall's days, except for an occasional flurry, there is a comparatively quiescent period in constitutional law until the acute, and growingly acute, issues of the last thirty years reflected themselves more intensely in legislation. This brought sharp contests before the Supreme Court. Two issues mainly concerned the Court: the scope of the power of Congress over Commerce, and the new limitations placed upon the states by the Fourteenth Amendment. The Commerce clause had been largely a slumbering power until the Interstate Commerce Act and the Sherman Law, and, more particularly, the legislation since 1906, brought its intensive application into constant question and resistance. In a series of important litigations there was pressed for decision, not only invalidity of State legislation as an encroachment upon the Federal power, but, even more, the affirmative exercise of the Federal power, rendered significant and detailed because of the pervasive aspect of modern commerce. The second class of cases involved the whole brood of questions arising from the new power of negation of the Federal Constitution over State action. Mr. Justice Holmes came to the Supreme Court at this period of legislative exuberance, marking a broad extension of governmental activities both in Nation and States. There was thus presented to the Court in greater volume and with unparalleled intensity, the determination of the powers of the Nation and of the State, and a delimitation of the field between them questions whose decision probably touched the public at once more widely and more immediately than any issues at any previous stage of the Court's history. On both these two basic problems of constitutional law - the power of the States and the power of the Nation-Mr. Justice Holmes's influence has been steady and consistent and growing. His opinions form a coherent body of constitutional law, and their effect upon the development of the law is the outstanding characteristic of constitutional history in the last decade. In our days, as in Marshall's, the issues before the Court have necessitated not merely an interpretation of this or that specific clause of the Constitution, but an inquiry into the fundamental attitude toward the Constitution and a conscious realization of the function of the Court as its interpreter. Marshall's great major premise was that "it is a constitution we are expounding." That was the background against which he projected every inquiry as to specific power or specific limitation. With that as a starting point, with the recognition, not as an arid bit of intellectualism but enforced with emotional drive, that the Constitution deals with great governmental powers to be exercised to great public ends, he went far toward erecting the structure within which the national spirit could freely move and flourish. Like all truths, Marshall's great canons had to be revivified by new demands that were made upon them by a new generation. Constant resort to the reviewing power of the Court based on claims that acts of legislatures or Congress transcended constitutional limitations, called again for a major premise as to the scope of the instrument which the Court must construe and the right attitude of the Court in its interpretative function. There always is a starting point in such questions, however inarticulate or even unconscious. What the pressure of new legislation demanded was a conscious re-examination of the starting point, of a vigorous realization of the scope and purpose of constitutional law, an analysis of the realistic issues in any given constitutional question. In a time of legislative activity, in a period of especial unrest in the law, signifying an absorption of new facts and changing social conceptions,2 the starting point must be a conscious one, lest power and policy be unconsciously confused. Mr. Justice Holmes has recalled us to the traditions of Marshall, that it is a Constitution we are expounding, and not a detached document inviting scholastic dialectics. To him the Constitution is a means of ordering the life of a young nation, having its roots in the past"continuity with the past is not a duty but a necessity" and intended for the unknown future. Intentionally, therefore, it was bounded with outlines not sharp and contemporary, but permitting of increasing definiteness through experience. "The provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions 2 See Dean Pound's various papers, particularly, "Do we need a Philosophy of Law?" 5 COL. L. REV. 339; 66 Common Law and Legislation," 21 HARV. L. REV. 383; "Mechanical Jurisprudence," 8 COL. L. REV. 605; "The Scope and Purpose of Sociological Jurisprudence," 24 HARV. L. REV. 591; 25 ibid. 489. transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.” 3 He has ever been keenly conscious of the delicacy involved in reviewing other men's judgment not as to its wisdom but as to their right to entertain the reasonableness of its wisdom. We touch here the most sensitive spot in our constitutional system: that its successful working calls for minds of extraordinary intellectual disinterestedness and penetration lest limitations in personal experience and imagination be interpreted, however conscientiously or unconsciously, as constitutional limitations. When regard is had to the complexities of modern society and the necessary specialization and narrowness of individual experience, the need for tolerance and objectivity in realizing, and then respecting, the validity of the experience and beliefs of others, becomes one of the most dynamic factors in the actual disposition of concrete cases. "Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." 4 "While the courts must exercise a judgment of their own, it by no means is true that every law is void which may seem to the judges who pass upon it excessive, unsuited to its ostensible end, or based upon conceptions of morality with which they disagree. Considerable latitude must be allowed for differences of view as well as for possible peculiar conditions which this court can know but imperfectly, if at all. Otherwise a constitution, instead of embodying only fundamental rules of right, as generally understood by all English-speaking communities, would become the partisan of a particular set of ethical or economical opinions, which by no means are held semper ubique et ab omnibus.' Therefore, except in the case of a few specific constitutional prohibitions (for that very reason rarely called into question), we are at once in a different atmosphere of approach from the rigid and the absolute. We are in a field where general principles are recognized but settle few controversies. Claim or denial of governmental power, of "individual rights," reveal themselves not as logical an 3 Gompers v. United States, 233 U. S. 604, 610. 4 Missouri, Texas and Kansas Ry. v. May, 194 U. S. 267, 270. |