avoid extracting from the very general language of the Fourteenth Amendment a system of delusive exactness in order to destroy methods of taxation which were well known when that Amendment was adopted and which it is safe to say that no one then supposed would be disturbed." 38 Throughout, these opinions recognize the pressure of diverse interests of the State, the problems that confront the effort to compose those interests, and the fruitful recognition that the Constitution was not meant to thwart such obligations of statesmanship. It is just this perception of statesmanship that is dominant. So, when the very foundation of the life of a State is challenged, when the trusteeship of the State in its natural resources is involved, we get at once an eloquent and profound support of such trusteeship. ". . . it appears to us that few public interests are more obvious, indisputable, and independent of particular theory than the interest of the public of a state to maintain the rivers that are wholly within it substantially undiminished, except by such drafts upon them as the guardian of the public welfare may permit for the purpose of turning them to a more perfect use. This public interest is omnipresent wherever there is a state, and grows more pressing as population grows. It is fundamental, and we are of opinion that the private property of riparian proprietors cannot be supposed to have deeper roots. Whether it be said that such an interest justifies the cutting down by statute without compensation, in the exercise of police power, of what otherwise would be private rights of property, or that apart from statute those rights do not go to the height of what the defendant seeks to do, the result is the same. But we agree with the New Jersey courts, and think it quite beyond any rational view of riparian rights that an agreement, of no matter what private owners, could sanction the diversion of an important stream outside the boundaries of the state in which it flows. The private right to appropriate is subject not only to the rights of lower owners but to the initial limitation that it may not substantially diminish one of the great foundations of public welfare and health. "We are of opinion, further, that the constitutional power of the state 38 Louisville v. Barber Asphalt Co., 197 U. S. 430, 433-4. "Accidental inequality is one thing, intentional and systematic discrimination another." First National Bank v. Albright, 208 U. S. 548, 552. This leads him also to scrutinize shrewdly a contract of exemption from taxation: "The construction of the statute by the Court of Appeals although not conclusive upon its meaning as a contract is entitled to great deference and respect. As a literal interpretation it is undeniably correct, and we should not feel warranted in overruling it because of a certain perfume of general exemption," Interborough Transit Co. v. Sohmer, 237 U. S. 276, 284. to insist that its natural advantages shall remain unimpaired by its citizens is not dependent upon any nice estimate of the extent of present use or speculation as to future needs. The legal conception of the necessary is apt to be confined to somewhat rudimentary wants, and there are benefits from a great river that might escape a lawyer's view. But the state is not to submit even to an aesthetic analysis. Any analysis may be inadequate. It finds itself in possession of what all admit to be a great public good, and what it has it may keep and give no one a reason for its will." 39 Only the shallow would attempt to put Mr. Justice Holmes in the shallow pigeonholes of classification. He has been imaginatively regardful of the sensibilities of the States, particularly in State controversies, and he has shown every deference, even as a matter of "equitable fitness or propriety," 40 to agencies of the States. In thus manifesting every rightful regard for self-reliant individual States, he to that extent only the more sought to maintain, so far as the judiciary plays a part, the full vigor of our dual system. From his opinions there emerges a conception of a Nation adequate to its great national duties and consisting of confederate States, in their turn possessed of dignity and power available for the diverse uses of civilized people. In their impact and sweep and fertile freshness, the opinions have been a superbly harmonious vehicle for the views which they embody. It all seems so easy, — brilliant birds pulled from the magician's sleeve. It is the delusive ease of great effort and great art. He has told us that in deciding cases "one has to try to strike the jugular," and his aim is sure. He has attained it, as only superlative work, no matter how great the genius, can be attained. "The eternal effort of art, even the art of writing legal decisions, is to omit all but the essentials. The point of contact' is the formula, the place where the boy got his finger pinched; the rest of the machinery doesn't matter." So we see nothing of the detailed draughtsmanship. We get, like Corot's pictures, "magisterial summaries." We get more: we get the man. Law ever has been for him one of the forces of life, a part of it and contributing to it. Back of his approach to an obscure statute from Oklahoma or Maine we catch 39 Hudson County Water Co. v. McCarter, 209 U. S. 349, 356-7. a glimpse of his approach to life. That glimpse each must get and treasure for his own. For me, another artist unawares has expressed the clue: "Why is there a limited authority in institutions? Why are compromise and partial coöperation practicable in society? Why is there sometimes a right to revolution? Why is there sometimes a duty to loyalty? Because the whole transcendental philosophy, if made ultimate, is false, and nothing but a selfish perspective hypostasized; because the will is absolute neither in the individual nor in humanity; because nature is not a product of the mind, but on the contrary there is an external world, ages prior to any a priori idea of it, which the mind recognizes and feeds upon; because there is a steady human nature within us, which our moods and passions may wrong, but cannot annul; because there is no absolute imperative, but only the operation of instincts and interests more or less subject to discipline and mutual adjustment; and finally because life is a compromise, an incipient loose harmony between the passions of the soul and the forces of nature, forces which likewise generate and protect the souls of other creatures, endowing them with powers of expression and self-assertion comparable to our own and with aims. not less sweet and worthy in their own eyes; so that the quick and honest mind can not but practise courtesy in the universe, exercising its will without vehemence or forced assurance, judging with serenity, and in everything discarding the word absolute as the most false and the most odious of words." 41 HARVARD LAW SCHOOL. Felix Frankfurter. 41 George Santayana, "German Philosophy and Politics," 12 J'L OF PHIL., PSYCHOL., ETC., 645, 649. Note: Following is a list of constitutional decisions containing opinions by Mr. FOURTEENTH AMENDMENT Police Power: Social legislation, utility regulation, foreign corporations, Otis v. Parker, 187 U. S. 606; Brownfield v. South Carolina, 189 U. S. 426; Anglo Taxation Blackstone v. Miller, 188 U. S. 189; Kidd v. Alabama, 188 U. S. 730; San Diego Co. v. Pennsylvania, 238 U. S. 143; Bi Metallic Co. v. Board, 239 U. S. 441; Gas Realty Co. v. Schneider Co., 240 U. S. 55. Eminent Domain Strickley v. Highland Boy Co., 200 U. S. 527; West Chicago R. Co. v. Chicago, 201 U. S. 506 (concurring); Boston Chamber of Commerce v. Boston, 217 U. S. 189; McGovern v. New York, 229 U. S. 363; New York v. Sage, 239 U. S. 57; Mt. Vernon Cotton Co. v. Alabama, 240 U. S. 30. COMMERCE CLAUSE Diamond Glue Co. v. U. S. Glue Co., 187 U. S. 611; Hanley v. Kansas City Ry. Co., 187 U. S. 617; Pullman Co. v. Adams, 189 U. S. 420; Knoxville Water Co. v. Knoxville, 189 U. S. 434; Northern Securities Case, 193 U. S. 197, 400; Swift & Co. v. United States, 196 U. S. 375; Chattanooga Co. v. Atlanta, 203 U. S. 390; Rearick v. Pennsylvania, 203 U. S. 507; The Employer's Liability Case, 207 U. S. 463, 541 (dissent); Adair v. United States, 208 U. S. 161, 190 (dissent); Galveston Ry. Co. v. Texas, 210 U. S. 217; Missouri Pacific Ry. v. Larabee Mills, 211 U. S. 612 (concurring); Keller v. United States, 213 U. S. 138, 149 (dissent); Western Union v. Kansas, 216 U. S. 1, 52 (dissent); Pullman Co. v. Kansas, 216 U. S. 56, 75; Standard Oil Co. v. Tennessee, 217 U. S. 413; Southern Ry. v. King, 217 U. S. 524, 537 (dissent); Dozier v. Alabama, 218 U. S. 124; Engel v. O'Malley, 219 U. S. 128; Oklahoma v. Wells Fargo & Co., 223 U. S. 298; Western Union Tel. Co. v. Richmond, 224 U. S. 160; Southern Railway v. Burlington Lumber Co., 225 U. S. 99; Darnell v. Indiana, 226 U. S. 390; Kansas City Ry. v. Kaw District, 233 U. S. 75; Western Union Tel. Co. v. Brown, 234 U. S. 542; Pipe Line Cases, 234 U. S. 548; United States v. Portale, 235 U. S. 27; Davis v. Virginia, 236 U. S. 697; Charleston & Car R. R. v. Varnville Co., 237 U. S. 597. FIFTH AMENDMENT United States v. Sing Tuck, 194 U. S. 161; Kepner v. United States, 195 U. S. 100, 134 (dissent); United States v. Ju Toy, 198 U. S. 253; Chin Yow v. United States, 208 U. S. 8; Matter of Moran, 203 U. S. 96; Ellis v. United States, 206 U. S. 246; Paraiso v. United States, 207 U. S. 368; Adair v. United States, 208 U. S. 161, 190 (dissent); Keller v. United States, 213 U. S. 138, 149 (dissent); Weems v. United States, 217 U. S. 349, 413 (dissent); Holt v. United States, 218 U. S. 245; Matter of Harris, Bankrupt, 221 U. S. 274; Hyde v. United States, 225 U. S. 347, 384 (dissent); Breese & Dickerson v. United States, 226 U. S. 1; Heike v. United States, 227 U. S. 131; Johnson v. United States, 228 U. S. 457;. Tiaco v. Forbes, 228 U. S. 549; Norfolk & Western Ry. Co. v. Dixie Co., 228 U. S. 593; Nash v. United States, 229 U. S. 373; Herbert v. Bicknell 233 U. S. 70; Gompers v. United States, 233 U. S. 604; Pipe Line Cases, 234 U. S. 548; United States v. Portale, 235 U. S. 27; Brown v. Elliott, 225 U. S. 392, 402 (dissent). IMPAIRMENT OF OBLIGATION OF CONTRACT Diamond Glue Co. v. United States Glue Co., 187 U. S. 611; Knoxville Water Co. v. Knoxville, 189 U. S. 434; Dawson v. Columbia Trust Co., 197 U. S. 178; Muhlker v. Harlem R. R. Co., 197 U. S. 544, 571 (dissent); Savannah Ry. v. Savannah, 198 U. S. 392; Tampa Co. v. Tampa, 199 U. S. 241; National Council v. State Council, 203 U. S. 151; Kuhn v. Fairmont Coal Co., 215 U. S. 349, 370 (dissent); Arkansas Ry. Co. v. Louisiana & Arkansas Ry., 218 U. S. 431; Fisher v. New Orleans, 218 U. S. 438; Calder v. Michigan, 218 U. S. 591; Cedar Rapids Gas Co. v. Cedar Rapids, 223 U. S. 655; Pomona v. Sunset Tel. Co., 224 U. S. 330; Murray v. Pocatello, 226 U. S. 318; Pittsburgh Steel Co. v. Baltimore Eq. Society, 226 U. S. 455; Madera Water Works v. Madera, 228 U. S. 454; Trimble v. City of Seattle, 231 U. S. 683; Hobbs v. Head & Dowst Co., |
