Our changing Constitution

Preface

Citizens of the United States are wont to think of their form of government, a political system based on a written constitution, as something fixed and stable. In reality, it is undergoing a profound change. The idea which constituted its most distinctive feature, and in the belief of many represents America’s most valuable contribution to the science of government, is being forgotten. Formed to be “an indestructible Union composed of indestructible states,” our dual system is losing its duality. The states are fading out of the picture.

The aim of this volume is to point out the change and discuss some of its aspects. A few chapters have already appeared in print. “Our Changing Constitution” and “Is the Federal Corporation Tax Constitutional?” were published in the Outlook. “‘The Corporation Tax Decision” appeared in the Yale Law Journal. “Can Congress Tax the Income from State and

Vv vi PREFACE

Municipal Bonds?” was printed in the New York Evening Post. All of these have been more or less revised and some new matter has been added.

Contents

CHAPTER PAGE I. Tue SAurent Feature oF THE Consti-

OU 10) Aa Oe nt he ee ale | The American Constitution, its origin and contents. Wherein its noyelty and greatness lay. Importance of maintaining the equilibrium established between national and state power. View of John Fiske.

II. Tue Supreme Court or THE UNITED EATS Pye Pes ch eee nos G Place of the Court in the constitu- | tional scheme. Its most important function. Personnel of the Court.

Appendix

CONTENTS power. Growth of federal bureaucracy. A reaction against centralization inevitable sooner or later.

Adequacy of Constitution to deal with changing conditions. The railroads and the trusts. | Dangerous assaults upon Constitution in field of social welfare legislation. Exercise of police power a matter for local authority. Elihu Root’s view. Outlook for the future.

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I THE SALIENT FEATURE OF THE CONSTITUTION

Frew documents known to history have received as much praise as the United States Constitution. Gladstone called it “the most wonderful work ever struck off at a given time by the brain and purpose of man.” The casual reader of the Constitution will be at a loss to account for such adulation. It will seem to him a businesslike document, outlining a scheme of government in terse and well-chosen phrases, but he is apt to look in vain for any earmarks of special inspiration. To understand the true greatness of the instrument something more is required than a mere reading of its provisions.

The Constitution was the work of a convention of delegates from the states, who met in Philadelphia in May, 1787, and labored together for nearly four months. They included a large part of the best character and intellect of the country. George Washington presided over their deliberations. The delegates had not been called together for the purpose of organizing a new government. Their instructions were limited to revising and proposing improvements in the Articles of the existing Confederation, whose inefficiency and weakness, now that the cohesive power of common danger in the war of the Revolution was gone, had become a byword. This task, however, was decided to be hopeless, and with great boldness the convention proceeded to disregard instructions and prepare a wholly new Constitution constructed on a plan radically different from that of the Articles of Confederation.

The contents of the Constitution, as finally drafted and submitted for ratification, may be described in few words. It created a legislative department consisting of a Senate and a House of Representatives, an executive department _ headed by a President, and a judicial department headed by a Supreme Court, and prescribed in general terms the qualifications, powers, and functions of each. It provided for the admission of new states into the Union and that the United States should guarantee to every state a republican form of government. It declared that

THE SALIENT FEATURE 3 the Constitution and the laws of the United States made in pursuance thereof, and treaties, should be the supreme law of the land. It provided a method for its own amendment. Save for a few other brief clauses, that was all. There was no proclamation of Democracy; no trumpet blast about the rights of man such as had sounded in the Declaration of Independence. On the contrary, the instrument expressly recognized human slavery, though in discreet and euphemistic phrases.

Wherein, then, did the novelty and greatness of the Constitution lie? Its novelty lay in the duality of the form of government which it created—a nation dealing directly with its citizens and yet composed of sovereign states—and in its system of checks and balances. The world had seen confederations of states. It was familiar with nations subdivided into provinces or other administrative units. It had known experiments in pure democracy. The constitutional scheme was none of these. It was something new, and its novel features were relied upon as a protection from the evils which had developed under the other plans. The greatness of the Constitution lay in its nice adjustment of the powers of government, notably the division of powers which it effected between the National Government and the states. The powers conferred on the National Government were clearly set forth. All were of a strictly national character. They covered the field of foreign relations, interstate and foreign commerce, fiscal and monetary system, post office and post roads, patents and copyrights, and jurisdiction over certain specified crimes. All other powers were reserved to the states or the people. In other words, the theory was (to quote Bryce’s “The American Commonwealth’’) “local government for local affairs; general government for general affairs only.”

The Constitution as it left the hands of its framers was not entirely satisfactory to anybody. Owing to the discordant interests and mutual jealousies of the states, it was of necessity an instrument of many compromises. One of the great compromises was that by which the small states were given as many senators as the large. Another is embalmed in the provisions recognizing slavery and permitting slaves to count in the apportionment of representatives. (The number of a state’s representatives was to be determined “by adding to the whole number of free persons . . . three-fifths of all other

THE SALIENT FEATURE 5 persons.”) Another was the provision that direct taxes should be apportioned among the states according to population. With all its compromises, however, the Constitution embodied a great governmental principle, full of hope for the future of the country, and the state conventions to which it was submitted for ratification were wise enough to accept what was offered. Ratification by certain of the states was facilitated by the publication of that remarkable series of papers afterward known as the “Federalist.”” These were the work of Alexander Hamilton, James Madison, and John Jay, and first appeared in New York newspapers.

One of the objections to the new Constitution in the minds of many people was the absence of a “bill of rights”? containing those provisions for the protection of individual liberty and property (e. g., trial by jury, freedom of speech, protection from unreasonable searches and seizures) which had. come down from the early charters of English liberties. In deference to this sentiment a series of ten brief amendments were proposed and speedily ratified. Another amendment (No. XI) was soon afterward adopted for the purpose of doing away with the effect of a Supreme Court decision. Thereafter, save for a change in the manner of electing the President and Vice-president, the Constitution was not again amended until after the close of the Civil War, when Amendments XIII, XIV, and XV, having for their primary object the protection of the newly enfranchised Negroes, were adopted. The Constitution was not again amended until the last decade, when the Income Tax Amendment, the amendment providing for the election of Senators by popular vote, the Prohibition Amendment, and the Woman Suffrage Amendment were adopted in rapid succession. Some of these will be discussed in later chapters.

It is interesting to note that two of the amendments (No. XI, designed to prevent suits against a state without its permission by citizens of another state, and No. XVI, paving the way for the Income Tax) were called forth by unpopular decisions of the Supreme Court, and virtually amounted to a recall of those decisions by the people. These instances demonstrate the possibility of a recall of judicial decisions by constitutional methods, and tend to refute impatient reformers who preach the necessity of a more summary procedure. Such questions, however, lie outside the scope of this book. We em-

THE SALIENT FEATURE xh phasize here the fact that the great achievement of the Constitution was the creation of a dual system of government and the apportionment of its powers. That was what made it “one of the longest reaches of constructive statesmanship ever known in the world.’' It offered the most promising solution yet devised for the problem of building a nation without tearing down local self-government.

John Fiske, the historian, writing of the importance of preserving the constitutional equilibrium between nation and states, said:?

If the day should ever arrive (which God forbid!) when the people of the different parts of our country shall allow their local affairs to be administered by prefects sent from Washington, and when the self-government of the states shall have been so far lost as that of the departments of France, or even so far as that of the counties of England— on that day the progressive political career of the American people will have come to an end, and the hopes that have been built upon it for the future happiness and prosperity of mankind will be wrecked forever.

If allowance be made for certain extravagances of statement, these words will serve as a fitting introduction to the discussions which follow.

1Riske: ‘The Critical Period of American History,”’ p. 301. 27d., p. 238.

II THE SUPREME COURT OF THE UNITED STATES

Tue Constitution effected an apportionment of the powers of government between nation and states. The maintenance of the equilibrium thus established was especially committed to the Supreme Court. This novel office, the most important of all its great functions, makes the Court one of the most vital factors of the entire governmental scheme and gives it a unique preeminence among the judicial tribunals of the world.

How the office has been performed, and whether the constitutional equilibrium is actually being maintained, are the questions to be considered in this book. Before taking them up, however, it will be useful to glance briefly at the Court itself and inquire how it is equipped for its difficult task.

The United States Supreme Court at present is composed of nine judges. The number originally was six. It now holds its sessions at the

Capitol in Washington, in the old Senate Chamber which once echoed with the eloquence of the Webster-Hayne debate. The judges are nominated by the President, and their appointment, like that of ambassadors, must be confirmed by the Senate. The makers of the Constitution took the utmost care to insure the independence of the Court. Its members hold office during good behavior, that is to say for life. They cannot be removed except by impeachment for misconduct. Only one attempt has ever been made to impeach a judge of the Supreme Court! and that attempt failed. Still further to insure their freedom from legislative control, the Constitution provides that the compensation of the judges shall not be diminished during their continuance in office.?.

From the time of John Jay, the first Chief Justice, down to the present day the men appointed to membership in the Court have, for the most part, been lawyers of the highest character and standing, many of whom had

1Justice Samuel Chase of Maryland in 1804-5.

2Tt is interesting to observe that this Court, safeguarded against popular clamor and composed of judges appointed for life, has consistently shown itself more progressive and more responsive to modern ideas than have most of the state Supreme Courts whose members are elected directly by the people and for limited terms only.

already won distinction in other branches of the public service. The present Chief Justice (Taft) is an ex-President of the United States. Among the other members of the Court are a former Secretary of State of the United States (Justice Day); two former Attorneys General of the United States (Justices McKenna and McReynolds); a former Chief Justice of Massachusetts (Justice Oliver Wendell Holmes, the distinguished son and namesake of an illustrious father); a former Chief Justice of Wyoming (Justice Van Devanter); and a former Chancellor of New Jersey (Justice Pitney).

It is well that the personnel of the Court has been such as to command respect and deference, for in actual power the judiciary is by far the weakest of the three codrdinate departments (legislative, executive, judicial) among which the functions of government were distributed by the Constitution. The power of the purse is vested in Congress: it alone can levy taxes and make appropriations. The Executive is Commander- - in-Chief of the Army and Navy and wields the appointing power. The Supreme Court controls neither purse nor sword nor appointments to office. Its power is moral rather than physical. It has no adequate means of enforcing its decrees without the codperation of other branches of the Government.

That codperation has not always been forthcoming. In the year 1802, Congress, at the instigation of President Jefferson, the inveterate enemy of Chief Justice Marshall, suspended the sessions of the Court for more than a year by abolishing the August term. In 1832, when the State of Georgia defied the decree of the Court in a case involving the status of the Cherokee Indians, the other departments of the Federal Government gave no aid and President Andrew Jackson is reported to have remarked: “John Marshall has made the decision, now let him execute it.” In 1868, Congress, in order to forestall decision in a case pending before the Court, hastily repealed the statute on which the jurisdiction of the Court depended.* Such instances, however, have been rare. The lawabiding instinct is strong in the American people, and for the most part the decisions of the Supreme Court have been received with respect and unquestioning obedience.

The chief weapon in the arsenal of the Court is the power to declare legislative acts void on

8See ex parte McCardle, 6 Wall. (Supreme Court Reports), 318; 7 2d., 506.

the ground that they overstep limits established by the people in the Constitution. This power has been frequently exercised. It is stated that the congressional statutes thus nullified have not numbered more than thirty, while at least a thousand state laws have been nullified.‘

The assumption of this power in the Court to declare statutes unconstitutional has been bitterly assailed, and is still denounced in some quarters, as judicial usurpation originated by John Marshall.

On the historical side this objection is not well founded. Various state courts had exercised the power to declare statutes unconstitutional before the Supreme Court came into existence.> The framers of the Constitution clearly intended that such a power should be exercised by the Supreme Court. Moreover, a somewhat similar power appears to have been exercised long before in England,’ though it gave place later to the present doctrine of the legal omnipotence of Parliament.

‘Brief of Solicitor General James M. Beck in the Child Labor Tax cases. It is to be borne in mind that there are forty-eight state legislatures and only one Congress.

5See Bryce: “‘The American Commonwealth,”’ Vol. I, p. 250. See e. g., “Federalist,” No. LX XVIII.

"See opinion of Lord Coke in Bonham’s Case, 8 Coke’s Reports, 118, decided in 1610.

On the side of reason and logic, the argument in favor of the power formulated more than a century ago by Chief Justice Marshall has never been adequately answered and is generally accepted as final. He said:°

The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? . . . The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act, contrary to the Constitution, is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

It would seem at first blush that the power in the Court to declare legislative acts unconstitutional affords a complete safeguard against congressional encroachment on the prerogatives of the states. Such is not the fact, however. The veto power of the Court by no means covers the entire field of legislative activity. In the Con-

8 Marbury v. Madison, 1 Cranch , 176.

vention which framed the Constitution, attempts were made to give to the judiciary, in conjunction with the executive, complete power of revision over legislative acts, but all such propositions were voted down.® As matters stand, there may be violations of the Constitution by Congress (or for that matter by the executive) of which the Court can take no cognizance.

For one thing, the Court cannot deal with questions of a political character. The function of the Court is judicial only. Upon this ground it was decided that the question which of two rival governments in the State of Rhode Island was the legitimate one was for the determination of the political department of government rather than the courts; that the question, whether the adoption by a state of the initiative and referendum violated the provision of the Federal Constitution guaranteeing to every state a republican form of government, was political and therefore beyond the _ jurisdiction of the Court.’ In 1867 a sovereign state sought to enjoin the President of the United States from enforcing an act of Congress alleged

9See e. g., Farrand: “Records of the Federal Convention,” Vol. I, pp. 138 et seq.; Vol. II, p. 298. 10 Luther v. Borden, 7 Howard, 1.

1 Pacific Telephone Co. v. Oregon, 223 U.S., 118.

to be unconstitutional. The Supreme Court, without determining the constitutionality of the act, declined to interfere with the exercise of the President’s political discretion.!? In the famous Dred Scott case” the effort of the Supreme Court to settle a political question accomplished nothing save to impair the influence and prestige of the Court.

The power of the Court to declare legislative acts unconstitutional is subject to another important limitation. The judicial power is limited by the Constitution to actual cases and controversies between opposing parties. The Court cannot decide moot questions or act as an adviser for other departments of the government. A striking illustration is found in the so-called Muskrat case.** Congress having legislated concerning the distribution of property of the Cherokee Indians, and doubts having arisen as to the constitutional validity of the legislation, Congress passed another act empowering one David Muskrat and other Cherokee citizens to file suit, naming the United States as defendant, to settle the question. The Supreme Court

22 State of Mississippi v. Andrew Johnson, 4 Wall., 475. 13 Dred Scott v. Sandford, 19 Howard, 393. 14 Muskrat v. United States, 219 U.S., 346.

declined to take jurisdiction and dismissed the suit, holding that it was not a case or controversy between opposing parties within the meaning of the Constitution.

Still another limitation is encountered in cases involving abuse of legislative power rather than lack of power. If Congress passes an act within one of the powers expressly conferred upon it by the Constitution, for example the power to lay taxes or the power to regulate interstate commerce, the Supreme Court cannot interfere though the incidental effect and ulterior purpose of the legislation may be to intrude upon the field of state power. We shall have occasion ta refer to this limitation more than once in later chapters.

An impression is abroad that the Supreme Court has plenary power to preserve the Constitution. Hence the tendency of groups to demand, and of legislators to enact, any kind of a law without regard to its constitutional aspect, leaving that to be taken care of by the Court.

Any such impression is erroneous and unfortunate. It puts upon the Court a burden beyond its real powers. It undermines the sense of responsibility which should exist among the elected representatives of the people. It impairs what someone has called the constitutional conscience, and weakens the vigilance of the people in preserving their liberties. Men and women need to be reminded that the duty of upholding the Constitution does not devolve upon the Supreme Court alone. It rests upon all departments of government and, in the last analysis, upon the people themselves.

Il OUR CHANGING CONSTITUTION

In A celebrated case’ decided a few years ago the Supreme Court of the United States said:

The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted it means now. Being a grant of powers to a government its language is general, and as changes come in social and political life it embraces in its grasp all new conditions which are within the scope of the powers in terms conferred. In other words, while the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. This in no manner abridges the fact of its changeless nature and meaning. Those things which are within its grants of power, as those grants were understood when made, are still within them, and those things not within them remain still excluded.

To determine the extent of the grants of power we must, therefore, place ourselves in the position of the men who framed and adopted the Constitution, and inquire what they must have understood to be the meaning and scope of those grants.

1South Carolina v. United States, 199 U.S., 437. 18

Thus speaks the voice whose word is law. Viewed in the sense intended—as the formulation of a legal rule for the interpretation and construction of a written instrument—the statement compels assent. As a statement of historical and political fact, however, it would not be accepted so readily. An acute critic of our institutions has said that the Constitution “has changed in the spirit with which men regard it, and therefore in its own spirit.” Men realize that the words of the Constitution, like the words of Holy Writ, have not always meant the same thing to those who regulate their conduct by its precepts; that the system of government which those words embody has in reality changed, is changing to-day. The makers of the Constitution represented the people of distinct and independent states, jealous of their rights and of each other but nevertheless impelled by experience of danger lately past and sense of other perils impending to substitute for their loose and ill-working confederation a more effective union. The most formidable obstacle, apart from mutual jealousies, was a fear of loss of liberties, state and individual, through encroachment of the central power. The instrument, drawn with this fear 2Bryce: “The American Commonwealth,” Vol. I, p. 400.

uppermost, was designed to limit the National Government to “the irreducible minimum of functions absolutely needed for the national welfare.” * 'To this end the powers granted were specifically enumerated. All other powers were by express enactment’ “reserved to the States respectively, or to the people.”

The strength of the popular sentiment against any encroachment of federal power was speedily demonstrated in a striking and dramatic way. Under the grant of power to determine controversies “‘between a state and citizens of another state’’> the Supreme Court in 1793 proceeded to entertain a suit by one Chisholm, a citizen of South Carolina, against the State of Georgia.° It had not been supposed that the grant of power contemplated such a suit against a state without its consent. The decision aroused an indescribable state of popular fury, not only in Georgia but throughout the Union, and led to the adoption of a constitutional amendment’ prohibiting such suits in future.

3Bryce, “The American Commonwealth,” Vol. I, p. 324. “Tenth Amendment.

5 Art. III, Sec. 2.

6See 2 Dallas, 419.

7Eleventh Amendment.

There is a long step between such an attitude toward the Constitution and the viewpoint which finds in it authority for the enactment by Congress of White Slave and Child Labor laws. Obviously there has been a profound change in what the Constitution means to its adherents. It will be interesting to consider briefly what has caused the change of view, and how it has been put into effect.

To one searching for causes the most striking phenomenon is the growth of a national consciousness. At the outset It was practically non-existent. To-day its power has astonished enemy and friend alike. Its growth has been due to both pressure from without and developments within. Our foreign wars, especially the war with Germany, have drawn the people together and enhanced the importance of interests purely national. Some of our other foreign relations have brought into relief the advantages of a strong central government as well as certain inconveniences of our system as it left the hands of the framers. Witness the embarrassment toward Italy growing out of lack of federal jurisdiction in respect of the New Orleans riots, and the ever-present danger to our relations with Japan from acts of the sovereign State of California which the Federal Government is powerless to control. Among developments from within was the Civil War, with its triumph for the idea of national supremacy and an indissoluble union. Another, which has hardly received the attention it deserves, has been the influence of the large element of our population composed of immigrants since the Revolution and their descendants. The state sovereignty doctrine was not a mere political dogma but had its roots in history. It was an expression of the pride of the inhabitants of the Thirteen Colonies in their respective commonwealths. ‘To them it stood for patriotism and traditions. These feelings the later immigrant neither shared nor understood. When he gave up his Old World allegiance and emigrated he came to America, not to New York or Massachusetts. To him the nation was everything, the state merely an administrative subdivision of the nation.

Another cause has been the desire to obtain aid in local matters from the national treasury. This has proved an exceedingly potent and insidious influence, leading state officials to surrender voluntarily state prerogatives in exchange for appropriations of federal money. Notable examples of this influence may be found in the field of river and harbor improvements, the creation of various new bureaus in the Department of Commerce, the enormous extension of the activities of the Agricultural Department and the Bureau of Education. The temptation in this direction is particularly strong among the less prosperous states, for it means the expenditure in those states of federal moneys raised chiefly from the taxpayers in wealthier states.

The most potent influence of all, however, has been the matter of internal economic development, stimulated by free trade among the states. This development has gone on apace with little regard for state lines. ‘The invention of railways drew the different sections of the country together in a common growth, and tended to make the barriers interposed by state lines and state laws seem artificial and cumbersome. In fact, they sometimes came to be regarded as intolerable and destructive of progress. The spectacle of men clamoring for federal control of their industries to escape the burdens of a diversified state interference has been a frequent phenomenon of recent years.®

8See e.g. the efforts of the life insurance interests: N. Y. Life Ins. Co. v, Deer Lodge County, 231 U.S., 495,

The foregoing enumeration by no means covers all the forces which have been at work. In recent years a strong tendency toward centralization and combination has developed, a tendency pervading all the interests and activities of men. Moreover, new views have arisen concerning the functions and scope of government, views challenging the laissez faire doctrines of earlier days and demanding a greater measure of governmental interference with the affairs of the individual. These tendencies, however, are not peculiar to America and lie outside the scope of the present discussion.

In considering the methods by which the change of spirit toward the Constitution has been put into effect, one is struck by the comparatively small part played by the only method contemplated by the framers, viz., constitutional amendment. This method is entirely practicable and fairly expeditious provided a sufficient number favor the change proposed. In the one hundred years prior to the recent Income Tax Amendment, however, only three amendments were enacted (Numbers XIII, XIV, and XV), all of them dealing primarily with the abolition of slavery and the civil rights of the Negro. The only one which need be noticed here is Number

XIV, which substituted a federal test of citizenship for state tests and provided that no state should “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” There was nothing new in these prohibitions. In substance they are as old as Magna Charta and were already embodied in most if not all of the state constitutions. The novelty lay in bringing the question, whether a state had in fact denied due process of law to an individual or corporation, within the jurisdiction of the federal courts. From a legal viewpoint this was a change of great importance. To the general student of constitutional government, however, it is less significant than others presently to be mentioned.