At last, in 1898, the Supreme Court at Washington, following some tentative gestures in that direction, accepted the new dispensation outright. In Smyth _v._ Ames decided that year, partially overturning Munn _v._ Illinois, it gave notice of its intention to review in detail the "reasonableness" of railway rates set by State authority and in Holden _v._ Hardy it ratified, at the same term, the doctrine of freedom of contract.[70] The result of the two holdings for the Court's constitutional jurisdiction is roughly indicated by the fact that whereas it had decided 134 cases under the Amendment during the thirty preceding years, in the ensuing thirteen years it decided 430 such cases.[71]
For more than a generation now the Court became the ultimate guardian, in the name of the Constitutional Document, of the _laissez-faire_ conception of the proper relation of Government to Private Enterprise, a rather inconstant guardian, however, for its fluctuating membership tipped the scales now in favor of Business, now in favor of Government. And today the latter tendency appears to have prevailed. In its decisions early in 1937 sustaining outstanding Roosevelt Administration measures, the Court not only subordinated the freedom of employers to contract to the freedom of employees to organize, but intimated broadly that liberty in some of its phases is much more dependent upon legislative implementation that upon judicial protection.[72]
In contrast to this withdrawal, however, has been the Court's projection of another segment of "liberty" into new territory. In Gitlow _v._ New York,[73] decided in 1925, even in sustaining an antisyndicalist statute, the Court adopted _arguendo_ the proposition which it had previously rejected, that "liberty" in Amendment XIV renders available against the States the restraints which Amendment I imposes on Congress. For fifteen years little happened. Then in 1940, the Court supplemented its ruling in the Gitlow Case with the so-called "Clear and Present Danger" rule, an expedient which was designed to divest state enactments restrictive of freedom of speech, of press, of religion, and so forth, of their presumed validity, just as, earlier, statutes restrictive of freedom of contract had been similarly disabled. By certain of the Justices, this result was held to be required by "the preferred position" of some of these freedoms in the hierarchy of constitutional values; an idea to which certain other Justices demurred. The result to date has been a series of holdings the net product of which for our Constitutional Law is at this juncture difficult to estimate; and the recent decision in Dennis _v._ United States under Amendment I augments the difficulty.[74]