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It was formerly the wont of legal writers to regard court decisions in much the same way as the mathematician regards the x of an algebraic equation: given the facts of the case and the existing law, the outcome was inevitable. This unhistorical standpoint has now been largely abandoned. Not only is it admitted that judges in finding the law act not as automata, as mere adding machines, but creatively, but also that the considerations which determine their decisions, far from resting exclusively upon a narrowly syllogistic basis, often repose very immediately upon concrete and vital notions of what is desirable and useful. "The very considerations," says Holmes in his Common Law, "which judges most rarely mention and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient to the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less, traceable to views of public policy in the last analysis." Holmes has in mind of course the common law, but his argument is equally to the point in the study of our American constitutional law. ·A great and growing part of this law is, like the common law, judge made. It is true that constitutional limitations are generally referred to some clause or other of the written Constitution. But this after all is a circumstance of which too much may be made very easily. Given a sufficient hardihood of purpose at the rack of exegesis, and any document, no matter what its fortitude, will eventually give forth the meaning required of it. Nor does this necessarily mean that the law is a nose of wax, to be moulded according to the caprice of the hour. What it does mean is that the institutional character of the law rests, partly upon the conception of precedent as binding, but much more largely-and it may be added, much more securely-upon the fact that views of policy themselves tend to become institutional in social and political theories.
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