Our Changing Constitution
by Charles Pierson
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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 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.



The American Constitution, its origin and contents. Wherein its novelty and greatness lay. Importance of maintaining the equilibrium established between national and state power. View of John Fiske.


Place of the Court in the constitutional scheme. Its most important function. Personnel of the Court. Its power moral rather than physical. Its chief weapon the power to declare legislative acts unconstitutional. Limitations on this power—political questions; necessity of an actual controversy; abuses of legislative power. Erroneous popular impressions. Impairment of the constitutional conscience.


Change in popular attitude toward the Constitution. Causes of the change (growth of national consciousness, wars, foreign relations, influence of later immigrants and their descendants, desire to obtain federal appropriations, economic development, railroads, free trade among the states). Methods by which change has been put into effect (constitutional amendment, treaties, federal legislation under cover of power to regulate commerce and lay taxes). Attitude of the Supreme Court. Differences of opinion in the Court.


History and radical character of amendment. Efforts to defeat it in the courts. Unusual course taken by Supreme Court. Discussion of its true place in the development of American constitutional law. Less a point of departure than a spectacular manifestation of a change already under way. Effect of the change on the principle of local self-government.


Attitude of the Constitution toward question of suffrage qualifications. Effect of Civil War amendments. Growth of woman suffrage movement and adoption of Suffrage Amendment. How far the amendment constitutes a federal encroachment on state power. Effect of woman suffrage on questions of governmental theory.


The child labor question. Philanthropic and commercial aspects. Attempt of Congress to legislate under power to regulate commerce. Decision of Supreme Court holding law unconstitutional. The decision explained. Reenactment of law by Congress under cover of power to lay taxes. Arguments for and against constitutionality of new enactment.


The Supreme Court at first a bulwark of national power; to-day the defender of the states. Explanation of this apparent change. Attitude of the Court in the first period. The period of Chief Justice Marshall. The period of Chief Justice Taney. The Reconstruction Period. Attitude of the Court to-day. Reasons why the Court is unable to prevent federal encroachment. Attitude of Hamilton and Marshall toward state rights misunderstood.


America's embarrassing position if the late war had come before adoption of Income Tax Amendment. Limitations of federal taxing power under the Constitution. Meaning of "uniformity." Apportionment of "direct taxes." The Supreme Court decision in the Income Tax cases in 1894 a reversal of long settled ideas. The Income Tax Amendment an example of recall of judicial decisions. Implied limitations on federal taxing power (compensation of federal judges, due process clause of the Constitution, no power to tax property or governmental activities of the states).


No express prohibition of such taxation; it lies in an implied limitation inherent in our dual system of government. Discussion of doctrine and its development by the Supreme Court. Effect of the Income Tax Amendment. Present dissatisfaction with doctrine and efforts to abolish it.


Nature of the tax. An interference with state power to grant corporate franchises. Nature of our dual government and Supreme Court decisions on the subject discussed. The debate in Congress.


Importance of the decision likely to be overlooked. Criticism of the Court's arguments. Effects of the decision.


Origin and history of Sherman Act. Its meaning now clear. Earlier uncertainties owing chiefly to two questions—What is interstate trade and Does the act enlarge the common-law rule as to what restraints were unlawful? How these questions have been settled. Statement of the common-law rule. Incompatibility between the law and present economic conditions. Suggestions for legal reform. The holding company device, its abuses and the possibility of abolishing it. Advantages of the scheme of federal incorporation.


Rapid progress and present extent of federal encroachment on state 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.





Few 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 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 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 emphasize 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."[1] It offered the most promising solution yet devised for the problem of building a nation without tearing down local self-government.

[Footnote 1: Fiske: "The Critical Period of American History," p. 301.]

John Fiske, the historian, writing of the importance of preserving the constitutional equilibrium between nation and states, said:[1]

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.

[Footnote 1: Id., p. 238.]

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



The 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[1] 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.[2]

[Footnote 1: Justice Samuel Chase of Maryland in 1804-5.]

[Footnote 2: It 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.]

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 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 cooerdinate 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 cooeperation of other branches of the Government.

That cooeperation 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.[1] Such instances, however, have been rare. The law-abiding 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.

[Footnote 1: See ex parte McCardle, 6 Wall. (Supreme Court Reports), 318; 7 id., 506.]

The chief weapon in the arsenal of the Court is the power to declare legislative acts void on 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.[1]

[Footnote 1: 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.]

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.[1] The framers of the Constitution clearly intended that such a power should be exercised by the Supreme Court.[2] Moreover, a somewhat similar power appears to have been exercised long before in England,[3] though it gave place later to the present doctrine of the legal omnipotence of Parliament.

[Footnote 1: See Bryce: "The American Commonwealth," Vol. I, p. 250.]

[Footnote 2: See e.g., "Federalist," No. LXXVIII.]

[Footnote 3: 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:[1]

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.

[Footnote 1: Marbury v. Madison, 1 Cranch, 176.]

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 Convention 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.[1] 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.

[Footnote 1: See e.g., Farrand: "Records of the Federal Convention," Vol. I, pp. 138 et seq.; Vol. II, p. 298.]

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;[1] 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.[2] In 1867 a sovereign state sought to enjoin the President of the United States from enforcing an act of Congress alleged 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.[3] In the famous Dred Scott case[4] the effort of the Supreme Court to settle a political question accomplished nothing save to impair the influence and prestige of the Court.

[Footnote 1: Luther v. Borden, 7 Howard, 1.]

[Footnote 2: Pacific Telephone Co. v. Oregon, 223 U.S., 118.]

[Footnote 3: State of Mississippi v. Andrew Johnson, 4 Wall., 475.]

[Footnote 4: Dred Scott v. Sandford, 19 Howard, 393.]

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.[1] 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 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.

[Footnote 1: Muskrat v. United States, 219 U.S., 346.]

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 to 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.



In a celebrated case[1] 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.

[Footnote 1: South Carolina v. United States, 199 U.S., 437.]

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."[1] 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.

[Footnote 1: Bryce: "The American Commonwealth," Vol. I, p. 400.]

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 uppermost, was designed to limit the National Government to "the irreducible minimum of functions absolutely needed for the national welfare."[1] To this end the powers granted were specifically enumerated. All other powers were by express enactment[2] "reserved to the States respectively, or to the people."

[Footnote 1: Bryce, "The American Commonwealth," Vol. I, p. 324.]

[Footnote 2: Tenth Amendment.]

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"[1] the Supreme Court in 1793 proceeded to entertain a suit by one Chisholm, a citizen of South Carolina, against the State of Georgia.[2] 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[3] prohibiting such suits in future.

[Footnote 1: Art. III, Sec. 2.]

[Footnote 2: See 2 Dallas, 419.]

[Footnote 3: Eleventh 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.[1]

[Footnote 1: See 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.

Right here it may be proper to notice a new theory of construction of the Constitution, not yet accepted but strenuously urged and containing enormous potentialities. This is the "doctrine of sovereign and inherent power," i.e., the doctrine that powers of national scope for whose exercise no express warrant is found in the Constitution are nevertheless to be implied as inherent in the very fact of sovereignty. This is a very different thing from the famous doctrine of implied powers developed by Chief Justice Marshall—that all powers will be implied which are suitable for carrying into effect any power expressly granted. It is a favorite theory of what may be termed the Roosevelt school. They consider that it is rendered necessary by the discovery of fields suitable for legislative cultivation, lying outside the domain of state power but not within the scope of any express grant of power to the nation. As practical men they abhor the existence of such a constitutional no man's land as nature abhors a vacuum.

During the presidency of Mr. Roosevelt a determined effort was made by the representatives of the Administration[1] to secure the recognition by the Supreme Court of the doctrine of sovereign and inherent power. It was claimed in the brief filed by the Attorney General and Solicitor General that the doctrine had already been applied by the Court in the Legal Tender cases.[2] The effort failed, however, the Court declaring that any such power, if necessary to the nation, must be conferred through constitutional amendment by the people, to whom all powers not granted had been expressly reserved by the Tenth Amendment.

[Footnote 1: In Kansas v. Colorado, 206 U.S., 46.]

[Footnote 2: Bryce makes a statement to the same effect. "The American Commonwealth," Vol. I, p. 383.]

A method by which the federal power and jurisdiction have been much extended has been the occupation by Congress, through legislation of an exclusive character, of fields where the states had exercised a concurrent jurisdiction. A familiar example is found in federal bankruptcy laws. Another and striking example is the so-called "Carmack Amendment" of the federal Interstate Commerce law. The question of liability for loss or damage to goods in the hands of railways and other carriers had been a fruitful field for state legislatures and state courts. The Carmack Amendment brushed away at a single stroke whole systems of state statutes and judicial decisions (in so far as they affected traffic across state lines) and substituted a uniform system under the control of the federal courts.

The federal power has also been extended at the expense of the states through the use of the treaty-making prerogative. The subjects upon which Congress may legislate are limited by specific enumeration. The treaty-making power, however, is not thus limited. Treaties may cover any subject. It follows that while the Federal Government has no power (for example) to regulate the descent of real property in the various states the treaty-making power permits it, by treaties with foreign nations, to destroy the alienage laws of the states.[1] Another very recent example is afforded by the Migratory Bird Treaty with Great Britain.[2] One will search the Constitution in vain for any grant of power to the Federal Government to enact game laws. Nevertheless, under this treaty, many state game laws have been practically annulled.

[Footnote 1: Hauenstein v. Lynham, 100 U.S., 483.]

[Footnote 2: Sustained by the Supreme Court in Missouri v. Holland, 252 U.S., 416.]

But the most far-reaching method by which federal power under the Constitution has been extended has been the adaptation—some will say the perversion—by Congress of old grants of power to new ends. Under the spur of public sentiment Congress has discovered new legislative possibilities in familiar clauses of the Constitution as one discovers new beauties in a familiar landscape. The clause offering the greatest possibilities has been the so-called Commerce Clause, which grants to Congress power "to regulate commerce with foreign nations, and among the several states."[1] Under this grant of power Congress has enacted, and the courts have upheld, a great mass of social and economic legislation having to do only remotely with commerce. For example, the Sherman Act and other anti-trust legislation, ostensibly mere regulations of commerce, but actually designed for the control and suppression of trusts and monopolies; the federal Pure Food and Drugs Act, designed to prevent the adulteration or mis-branding of foods and drugs and check the abuses of the patent-medicine industry;[2] the act for the suppression of lotteries, making it a crime against the United States to carry or send lottery tickets or advertisements across state lines;[3] an act to prevent the importation of prize-fight films.[4] These are only a few among many similar statutes which might be mentioned. In all of them the motive is clear. There is no concealment about it. Their primary object is to suppress or regulate the trusts, lotteries, patent-medicine frauds. The regulation of commerce is merely a matter of words and legal form.

[Footnote 1: Art. I, Sec. 8.]

[Footnote 2: Hipolite Egg Company v. United States, 220 U.S., 45.]

[Footnote 3: Champion v. Ames, 188 U.S., 321.]

[Footnote 4: Weber v. Freed, 239 U.S., 325.]

Especially noteworthy is the rapidly expanding body of social legislation—federal Employers' Liability Act, Hours of Service acts, Child Labor Law, White Slave Act and the like, all drawn with an eye to the commerce clause but designed to accomplish objects quite distinct from the regulation of commerce.

As already said, the Commerce Clause has been found most available for purposes of such legislation. Other clauses have, however, served their turn. For example, the grant of power to lay taxes was utilized to destroy an extensive industry obnoxious to the dairy interests—the manufacture of oleomargarine artificially colored to look like butter.[1] Also to invade the police power of the States in respect of the regulation of the sale and use of narcotic drugs.[2] Also to check speculation and extortion in the sale of theatre tickets![3] The power to borrow money and create fiscal agencies was utilized to facilitate the making of loans upon farm security at low rates of interest through the incorporation of Federal land banks or Joint Stock land banks.[4]

[Footnote 1: McCray v. United States, 195 U.S., 27.]

[Footnote 2: Narcotic Drug Act. Held constitutional in United States v. Doremus, 249 U.S., 86; Webb v. United States, 249 U.S., 96.]

[Footnote 3: Revenue Act of 1921, Title VIII, subdivisions 2 and 3.]

[Footnote 4: Smith v. Kansas City Title Co., 255 U.S., 180.]

It would be an insult to intelligence to claim that legislation such as this, wearing the form of revenue measure or regulation of commerce but in reality enacted with a different motive, does not involve an enormous extension of the national power beyond what the makers of the Constitution supposed they were conferring or intended to confer. What, then, of the declaration by the Supreme Court with which we began, that "to determine the extent of the grants of power we must 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 these grants." The answer must be that the Court itself has not always adhered strictly to this test. The Court has taken the position that when power exists under the Constitution to legislate upon a given subject—say interstate commerce or taxation—it is not for the judiciary to seek to correct abuses by Congress of that power, or to question Congressional motives. As said in the decision sustaining the constitutionality of the oleomargarine law:[1]

The judiciary is without authority to avoid an act of Congress lawfully exerting the taxing power, even in a case where to the judicial mind it seems that Congress had, in putting such power in motion, abused its lawful authority by levying a tax which was unwise or oppressive, or the result of the enforcement of which might be to indirectly affect subjects not within the powers delegated to Congress, nor can the judiciary inquire into the motive or purpose of Congress in adopting a statute levying an excise tax within its constitutional power.

[Footnote 1: McCray v. United States, 195 U.S., 27.]

The Court, however, has had great difficulty with these cases and developed sharp differences of opinion. For example, the case upholding the anti-lottery statute as a valid exercise of the power to regulate commerce[1] was twice ordered for reargument and finally decided by a bare majority of 5 to 4. The Child Labor Law of 1916 was declared unconstitutional[2] and the Narcotic Drug Act was sustained[3] by a similar vote, 5 to 4. In the Narcotic Drug case the four dissenting justices, speaking through Chief Justice White, characterized portions of the statute as "beyond the constitutional power of Congress to enact ... a mere attempt by Congress to exert a power not delegated, that is, the reserved police power of the states." In the Lottery case the dissenting opinion of the four, written by Chief Justice Fuller, concludes:

I regard this decision as inconsistent with the views of the framers of the Constitution, and of Marshall, its great expounder. Our form of government may remain notwithstanding legislation or decision, but, as long ago observed, it is with governments, as with religions, the form may survive the substance of the faith.

[Footnote 1: Champion v. Ames, 188 U.S., 321.]

[Footnote 2: Hammer v. Dagenhart, 247 U.S., 251.]

[Footnote 3: United States v. Doremus, 249 U.S., 86.]

Whatever view one may hold to-day as to the question of expediency, no thoughtful mind can escape the conclusion that, in a very real and practical sense, the Constitution has changed. In a way change is inevitable to adapt it to the conditions of the new age. There is danger, however, that in the process of change something may be lost; that present-day impatience to obtain desired results by the shortest and most effective method may lead to the sacrifice of a principle of vital importance.

The men who framed the Constitution were well advised when they sought to preserve the integrity of the states as a barrier against the aggressions and tyranny of the majority acting through a centralized power. The words "state sovereignty" acquired an odious significance in the days of our civil struggle, but the idea for which they stand is nevertheless a precious one and represents what is probably America's most valuable contribution to the science of government.

We shall do well not to forget the words of that staunch upholder of national power and authority, Salmon P. Chase, speaking as Chief Justice of the Supreme Court in a famous case growing out of the Civil War:[1]

The preservation of the states, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National Government. The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible states.

[Footnote 1: Texas v. White, 7 Wall., 700.]



Could Washington, Madison, and the other framers of the Federal Constitution revisit the earth in this year of grace 1922, it is likely that nothing would bewilder them more than the recent Prohibition Amendment. Railways, steamships, the telegraph, the telephone, automobiles, flying machines, submarines—all these developments of science, unknown in their day, would fill them with amazement and admiration. They would marvel at the story of the rise and downfall of the German Empire; at the growth and present greatness of the Republic they themselves had founded. None of these things, however, would seem to them to involve any essential change in the beliefs and purposes of men as they had known them. The Prohibition Amendment, on the contrary, would evidence to their minds the breaking down of a principle of government which they had deemed axiomatic, the abandonment of a purpose which they had supposed immutable. As students of the science of government they would realize that the most fundamental change which can overtake a free people is a change in their frame of mind, for to that everything else must sooner or later conform.

The amendment was proposed by Congress in 1917 and proclaimed as having been ratified in 1919.[1]

[Footnote 1: 40 Stat. 1050, 1941.]

The comparative ease and dispatch with which it was put through argue alike the skill and vigor of its sponsors and the strength of the sentiment behind them. Legal warfare over the amendment did not end, however, with its ratification by the legislatures of the requisite number of states. Passions had been aroused. Vast property interests were menaced. Moreover, in the minds of students of government the amendment stirred misgivings which were quite independent of the sentimental and material considerations involved. Eminent counsel were retained and a determined effort was made to defeat or nullify the amendment in the courts. To this end suits were begun in various jurisdictions to test its validity and enjoin the enforcement of the Volstead Act, which sought to carry it into effect. Two sovereign states (Rhode Island and New Jersey) joined in the attack and through their respective Attorneys General brought original suits in the United States Supreme Court to have the amendment declared invalid. Seven test cases were argued together in the Supreme Court, five days in all being devoted to the argument. It will be of interest to note some of the reasons advanced against the validity of the amendment, as they are summarized in the official report.[1]

[Footnote 1: National Prohibition cases, 253 U.S., 350.]

The Attorney General of the State of Rhode Island argued[1] that:

The amendment is an invasion of the sovereignty of the complaining state and her people, not contemplated by the amending clause of the Constitution. The amending power ... is not a substantive power but a precautionary safeguard inserted incidentally to insure the ends set forth in that instrument against errors and oversights committed in its formation. Amendments, as the term indeed implies, are to be limited to the correction of such errors....

It is "This Constitution" that may be amended. "This Constitution" is not a code of transient laws but a framework of government and an embodiment of fundamental principles. By an amendment, the identity or purpose of the instrument is not to be changed; its defects may be cured, but "This Constitution" must remain. It would be the greatest absurdity to contend that there was a purpose to create a limited government and at the same time to confer upon that government a power to do away with its own limitations.

[Footnote 1: Id., pp. 354-356.]

The Attorney General of the State of New Jersey:[1]

attacked the amendment as an invasion of state sovereignty not authorized by the amending clause and as not, properly speaking, an amendment, but legislation, revolutionary in character.

[Footnote 1: 253 U.S., pp. 356-357.]

The eminent Chicago lawyer, Levy Mayer, and ex-Solicitor General William Marshall Bullitt, contended,[1] among other things, that

the power of "amendment" contained in Art. V does not authorize the invasion of the sovereign powers expressly reserved to the states and the people by the Ninth and Tenth Amendments, except with the consent of all the states....

If amendment under Art. V were unlimited, three-fourths of the legislatures would have it in their power to establish a state religion and prohibit free exercise of other religious beliefs; to quarter a standing army in the houses of citizens; to do away with trial by jury and republican form of government; to repeal the provision for a president; and to abolish this court and with it the whole judicial power vested by the Constitution.

[Footnote 1: Id., pp. 357-361.]

Elihu Root, preeminent as a constitutional lawyer, appeared as counsel in one of the test cases. His main contention was summarized in his brief as follows:[1]

(a) That the authority to amend the Constitution is a continuance of the constitution-making power and as such is a power quite different and altogether distinct from the law-making power under the Constitution.

(b) That a grant of the one power does not include or imply a grant of the other.

(c) That the natural and ordinary meaning of the words used in Article V of the Constitution [the article providing for amendment] limits the power granted to the function of constitution-making as distinguished from ordinary law-making.

(d) That the purposes of the grant imply the same limitation.

(e) That other parts of the Constitution—notably Article I—express the same limitation.

(f) That the existence of authority under Article V to enact ordinary laws regulating the conduct of private citizens under color of amendment, would be so in conflict with the fundamental principles and spirit of the Constitution that such a construction is not permissible.

[Footnote 1: For the Reporter's Summary see 253 U.S., pp. 361-367.]

There were other arguments of a more technical character. Article V of the Constitution provides that the Congress shall propose amendments "whenever two-thirds of both Houses shall deem it necessary." It was urged that this required the affirmative vote of two-thirds of the entire membership of both Houses, and that two-thirds of a quorum was not sufficient. It was also urged that the proposal was fatally defective because it did not on its face declare that both Houses deemed the amendment necessary. It was also argued that the amendment had not been effectively ratified in certain of the states where it had been approved by the state legislature (notably Ohio) because under the constitutions of those states it was subject to a referendum to the people before becoming effective. The Supreme Court of Ohio had so decided[1] and a referendum had actually been held in that state, resulting in a rejection of the amendment by popular vote. Various arguments were also advanced based on the puzzling phraseology of Section 2 of the amendment that "the Congress and the several States shall have concurrent power to enforce this article by appropriate legislation." The eminent constitutional lawyer, W.D. Guthrie, addressed himself particularly to this phase of the controversy.[2] It was urged with much force that the effect of these words was to save the rights of the states, in respect of intrastate matters, by requiring their concurrence in any legislation of Congress regulating such matters.

[Footnote 1: See Hawke v. Smith, 253 U.S., 221.]

[Footnote 2: 253 U.S., pp. 368-380.]

All the arguments advanced were alike unavailing. The nine members of the Supreme Court were unanimous in sustaining the validity of the amendment, holding that it "by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument."[1] The Court, however, adopted the very unusual course of deciding the various cases before it (affirming four, reversing one, and dismissing the original bills filed by the states of Rhode Island and New Jersey) without any written opinion. Speaking through Mr. Justice Van Devanter, the Court merely announced its conclusions. This was an unprecedented procedure in a case involving constitutional questions of such importance. It drew criticism from some of the members of the Court itself. Chief Justice White said:[2]

I profoundly regret that in a case of this magnitude, affecting as it does an amendment to the Constitution dealing with the powers and duties of the national and state governments, and intimately concerning the welfare of the whole people, the court has deemed it proper to state only ultimate conclusions without an exposition of the reasoning by which they have been reached.

and proceeded to announce the reasons which had actuated him personally. Justice McKenna said:[3]

The court declares conclusions only, without giving any reasons for them. The instance may be wise—establishing a precedent now, hereafter wisely to be imitated. It will undoubtedly decrease the literature of the court if it does not increase lucidity.

[Footnote 1: Id., p. 386.]

[Footnote 2: Id., p. 388.]

[Footnote 3: 253 U.S., p. 393.]

Perhaps a hint as to the reasons actuating the majority of the Court may be found in the brief concurring memorandum of Mr. Justice McReynolds. He said:[1]

I do not dissent from the disposition of these causes as ordered by the Court, but confine my concurrence to that. It is impossible now to say with fair certainty what construction should be given to the Eighteenth Amendment. Because of the bewilderment which it creates, a multitude of questions will inevitably arise and demand solution here. In the circumstances, I prefer to remain free to consider these questions when they arrive.

[Footnote 1: Id., p. 392.]

Justices McKenna and Clarke dissented from portions of the decision dealing with the question of the proper construction of the grant of "concurrent power" to Congress and the States, and wrote opinions setting forth the grounds of their dissent. Both Justices, however, concurred in affirming the validity of the amendment.

Thus the legal battle was fought and lost. The amendment had withstood attack and men's minds settled back to the practical question of its enforcement.

Upon that question, however difficult and interesting, we do not here enter. Our present concern is to ascertain as nearly as may be the true place of the amendment in the development of American constitutional law.

That it affords startling evidence of a radical departure from the views of the founders of the Republic is beyond question. Such a blow at the prerogatives of the states, such a step toward centralization, would have been thought impossible by the men of 1787. It would be a mistake, however, to view the departure as having originated with this amendment. Rather is the amendment to be regarded as merely a spectacular manifestation of a change which was already well under way.

In the early days of the Republic the dominating purpose was the protection of state prerogatives, so far as that was compatible with the common safety. The first eleven amendments of the Federal Constitution were all limitations upon federal power. Not until the people of the various states had been drawn together and taught to think in terms of the nation by a great Civil War was there any amendment which enlarged the powers of the National Government. The three post-war amendments (Nos. XIII, XIV, and XV) marked a distinct expansion of federal power but one that seemed to find its justification, as it found its origin, in the necessity for effectuating the purposes of the war and protecting the newly enfranchised Negroes.

A long period of seeming inactivity, more than forty years, elapsed before another constitutional amendment was adopted.[1] The inaction, however, was apparent rather than real. As matter of fact, a change was all the time going on. In a very real sense the Constitution was being altered almost from year to year. That the alterations did not take the shape of formal written amendments was largely due to the tradition of constitutional immobility. The idea had grown up that the machinery of amendment provided by the Fathers was so slow and cumbersome that it was impossible as a practical matter to secure a change by that method except under stress of war or great popular excitement. That idea is now exploded. We of to-day know better, having seen the Income Tax Amendment (No. XVI), the Election of Senators by Popular Vote Amendment (No. XVII), the Prohibition Amendment (No. XVIII), and the Woman Suffrage Amendment (No. XIX) go through within a period of seven years. For generations, however, the tradition of constitutional immobility held sway and the forces of change worked through channels that seemed easier and less obstructed.

[Footnote 1: No. XVI, the Income Tax Amendment, ratified in 1913.]

The principal channel has been congressional legislation. Congress has found ways of reaching by indirection objects which could not be approached directly. Under the express grants of power contained in the Constitution statutes have been enacted which were really designed to accomplish some ulterior object. A striking example is found in the child labor laws, discussed more at length in a subsequent chapter. Congress at first sought to regulate child labor by a statute enacted ostensibly as a regulation of commerce under the Commerce Clause of the Constitution. The Supreme Court held the Act unconstitutional as exceeding the commerce power of Congress and invading the powers reserved to the states.[1] Thereupon Congress practically reenacted it, coupled with a provision for a prohibitive tax on the profits of concerns employing child labor, as part of a revenue act enacted under the constitutional grant of power to lay taxes.[2]

[Footnote 1: Hammer v. Dagenhart, 247 U.S., 251.]

[Footnote 2: Revenue Act of 1918, Title XII.]

The assumption by the National Government of jurisdiction over the manufacture and sale of intoxicating liquors is no more of an encroachment on the prerogatives of the states than is its assumption of jurisdiction over child labor and the use of narcotic drugs. We come back, therefore, to the proposition that the Prohibition Amendment is to be regarded less as a departure in American fundamental law than as a spectacular manifestation of a change already well under way.

The change, however much students of our institutions may deplore it, is not difficult to explain. The earlier solicitude for state rights was in a sense accidental. It was based on sentiment and mutual jealousies among the colonies rather than on any fundamental differences in race, beliefs, or material interests. The traditions behind it, while strong, were of comparatively recent growth. When they entered the Union the colonies were still new and undeveloped. As men died and their sons succeeded them prejudices gradually yielded and sentiment changed. Moreover, various other forces—immigration, free trade among the states, the growth of railways and other nationwide industries, foreign wars—have been at work to obliterate state lines.

Advocates of the old order see in the change a breaking down of the principle of local self-government. To their minds the danger of majority tyranny, made possible by a centralization of power in a republic of such vast extent and varied interests, outweighs all the advantages of national uniformity and efficiency. Advocates of the new order think otherwise. They argue, moreover, that the states have become too great and populous to serve as units for purposes of home rule; that their boundaries are for the most part artificial and correspond to no real distinctions in the ordinary life of men. They assert that the instinct for local self-government remains as strong as it ever was, and instance the resentment of New York City over interference from Albany.

The average man gives little thought to the constitutional aspect of the controversy. His interest in the prohibition movement is focused on other features which seem to him of more immediate concern. And yet, did he but realize it, the constitutional aspect transcends all the others in its importance for the future welfare and happiness of himself, his children, and his country.



A prudent man touches the question of woman suffrage gingerly. Many fingers have been burnt in that fire and its embers are not yet dead. Some mention of the Nineteenth Amendment seems necessary, however, in any discussion of federal encroachment on state power, and it may be possible to approach the suffrage movement from the standpoint of constitutional law without getting upon controversial ground.

The United States Constitution as originally adopted did not prescribe who should be entitled to vote. That matter was left entirely in the hands of the states. The Constitution provided[1] that, for the election of members of the House of Representatives, "the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature." It was further provided that Senators should be chosen by the legislatures of the states[2] and that the President and Vice-president should be chosen by presidential electors appointed in such manner as the state legislatures might direct.[3] These were the only elective federal officials.

[Footnote 1: Article I, Section 2.]

[Footnote 2: Article I, Section 3.]

[Footnote 3: Article II, Section 1.]

While the states were thus left in full control, it does not follow that the matter was deemed wholly outside the proper scope of national authority. No argument is necessary to demonstrate that the regulation of the suffrage in national elections is or may be a matter of national concern. The question of prescribing the qualifications of voters in such elections was much debated in the Convention which framed the Constitution.[1] Some members were in favor of prescribing a property qualification and limiting the suffrage to freeholders. It was finally decided, however, to accept the qualifications prescribed by state law. In adopting this plan the Convention followed the line of least resistance. The qualifications of voters in the various states differed.[2] Most states required a property qualification, but some did not. It was felt that to attempt to impose a uniform rule on all the states would arouse opposition and create one more obstacle to be overcome in the formidable task of getting the Constitution ratified.

[Footnote 1: See e.g., Farrand, "Records of the Federal Convention," Vol. II, p. 201 et seq.]

[Footnote 2: For a statement of the qualifications in the various states see Minor v. Happersett, 21 Wall., 162.]

There the matter rested, with suffrage qualifications regulated entirely by state law, until after the Civil War. Meanwhile, the states had been abolishing property tests, and universal male suffrage had been written into state constitutions. The cry for woman suffrage had begun, but as yet it was only a still small voice, inaudible to legislators.

After the Civil War the problem of protecting the emancipated slaves had to be dealt with, and three constitutional amendments (Nos. XIII, XIV, and XV) were adopted with that end primarily in view. Number XIII, ratified in 1865, formally abolished slavery. Number XIV, ratified in 1868, extended citizenship to all persons born in the United States and provided (among other things) that no state should abridge the privileges or immunities of citizens of the United States. Number XV, ratified in 1870, provided that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Here was the entering wedge of federal interference. The amendments did not purport to deal with woman suffrage, but the pioneers of the suffrage movement thought they discovered in them a means of advancing their cause and lost no time in putting the matter to the test. Susan B. Anthony voted at Rochester, N.Y., in an election for a representative in Congress, claiming that the restriction of voting to males by the constitution and laws of New York was void as a violation of the Fourteenth Amendment providing that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." She was indicted for voting unlawfully, and on her trial before Justice Hunt of the United States Supreme Court, sitting at Circuit, the Court directed the jury to find a verdict of guilty and imposed a fine of $100 and costs.[1]

[Footnote 1: United States v. Anthony, 11 Blatchford, 200.]

Mrs. Virginia Minor raised a similar question in the courts of Missouri. The Missouri constitution limited the right to vote to male citizens. Mrs. Minor applied for registration as a voter, and on being refused brought suit against the Registrar of Voters on the ground that this clause of the Missouri constitution was in violation of the Fourteenth Amendment. The Missouri state courts decided against her, and the case was taken to the Supreme Court of the United States where the decision of the state courts was affirmed.[1] The Supreme Court held in effect that while Mrs. Minor was a citizen that fact alone did not make her a voter; that suffrage was not coextensive with citizenship, either when the Constitution was adopted or at the date of the Fourteenth Amendment, and was not one of the "privileges and immunities" guaranteed by that amendment.

[Footnote 1: Minor v. Happersett, 21 Wall., 162.]

A similar decision was rendered in the matter of Mrs. Myra Bradwell's application for a license to practise law in Illinois.[1] The Supreme Court held that the right to practise law in the state courts was not a privilege or immunity of a citizen of the United States within the meaning of the Fourteenth Amendment, and affirmed the decision of the Illinois Court denying Mrs. Bradwell's application.

[Footnote 1: Bradwell v. Illinois, 16 Wall., 130.]

The failure of these attempts to turn the Fourteenth Amendment to the advantage of the woman suffrage movement in no wise checked the movement or discouraged its leaders. They redoubled their efforts among the separate states, and worked to such good purpose that the opposition presently began to take on the aspect of a forlorn hope. "Votes for Women" became an accomplished fact in many states, and appeared on the verge of accomplishment in most of the others. Some states, however, were still holding out when the leaders of the movement, impatient of further delay and determined to coerce the recalcitrants, took the matter into the national arena and procured the proposal and ratification of an amendment to the Federal Constitution. The amendment provides:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.

In other words, it adopts verbatim the phraseology of the Fifteenth Amendment, merely substituting the word "sex" for the words "race, color, or previous condition of servitude."

So much for the historical background of the so-called Susan B. Anthony Amendment. It remains to consider just how far the amendment constitutes an encroachment by the Federal Government on the powers of the states.

In so far as it affects the qualifications of voters at national elections (i.e., for president, senators, representatives) the encroachment is more apparent than real. As has already been pointed out, this is essentially a national question, and the Constitution adopted the suffrage qualifications prescribed by state law, not as a matter of principle, but for reasons of expediency and convenience.

In so far, however, as the amendment imposes woman suffrage on the states in elections of state and local officials the situation is entirely different. That staunch advocate of national power, Alexander Hamilton, said in the Federalist:[1]

Suppose an article had been introduced into the Constitution, empowering the United States to regulate the elections for the particular states, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the state governments?

[Footnote 1: Federalist LIX.]

What Hamilton scouted as impossible has been accomplished in the Nineteenth Amendment. It in effect strikes out the word "male" from the suffrage provisions of state constitutions. It overrides state policy and interferes with the right of states to manage their own affairs. From the theoretical standpoint a more serious inroad on state prerogatives would be hard to find. Control of the suffrage is one of the fundamental rights of a free state. It belonged to the North American states before their union, and was not surrendered to the National Government when the union was effected. Moreover, the encroachment has a very practical side. To confer the suffrage on the educated women of Connecticut was one thing; to confer it on the Negro women of Alabama was quite a different matter, involving different considerations. The amendment took no heed of such differences but imposed a uniform rule on all the states, regardless of local prejudices or conditions.

It is true that a somewhat similar encroachment on state power had been made by the Fifteenth Amendment, designed to enfranchise the Negroes. That amendment, however, had its origin in conditions growing out of the Civil War, and claimed its justification in the necessity for protecting the freed slaves against hostile state action. It was avowedly an emergency measure, and the success with which it has been nullified in some quarters testifies to the unwisdom of forcing such measures upon reluctant states.

The conditions surrounding the adoption of the Nineteenth Amendment were altogether different. Few people take seriously the alleged analogy between the women and the slaves. The constitutional method—action through the separate states—was being pursued with signal success. The states were rapidly falling in line. Most of them had already granted woman suffrage or were ready to grant it. There was no overmastering need for coercing the states that were not yet ready. An impartial student of the period will be apt to conclude that the Nineteenth Amendment was the product of impatience rather than necessity.

Someone may ask, "What effect will the granting of votes to women have on the problem of preserving the constitutional equilibrium?" The ultimate power lies with the voters, and the women with votes now equal or outnumber the men. What is the reaction of women voters likely to be toward questions of political theory?

Ours is a governmental scheme of extreme complexity. As with animal organisms so with political systems, the higher they rise in the scale of development the more complicated they tend to become. An absolute monarchy is simplicity itself compared with our dual system. To maintain the proper adjustment of such a machine requires intelligence of a high order. The machine will not run itself and male tinkers have abundantly demonstrated that it is not fool-proof. But something more is required than mere intelligence. There must be, at least among the leaders, an instinct for governmental problems as distinguished from those of a merely social or personal character; an ability to recognize and a willingness to conform to underlying principles.

How will the women voters meet this test? Granting (what few will dispute) that their intelligence at least equals that of the men, will they be as likely as men to look beyond the immediate social welfare problem to the governmental principle at stake? Will an abstract proposition hold its own in their minds against a concrete appeal?

We do not attempt to answer these questions, but they contain food for thought.



The present Federal Revenue Act is noteworthy in more aspects than its complexity and the disproportionate burden cast on possessors of great wealth. To students of our form of government it is particularly interesting because of provisions[1] purporting to impose a tax on employers of child labor, for these represent an attempt by Congress to nullify a decision of the Supreme Court and grasp a power belonging to the states. The story of these provisions throws a flood of light on a method by which our Constitution is being changed.

[Footnote 1: Revenue Act of 1921, Title XII.]

The evils of child labor have long engaged the attention of philanthropists and lawmakers. In comparatively recent years child labor laws are said to have been enacted in every state of the Union. These statutes, however, lacked uniformity. Some of them were not stringent enough to satisfy modern sentiment. Moreover, commercial considerations entered into the reckoning. Industries in states where the laws were stringent were found to be at a disadvantage in comparison with like industries in states where the laws were lax, and this came to be regarded as a species of unfair competition. The advantages of uniformity and standardization seemed obvious from both the philanthropic and the commercial viewpoints, and Congress determined to take a hand in the matter.

No well-informed person supposed for a moment that the regulation of child labor was one of the functions of the General Government as those functions were planned by the makers of the Constitution. The United States Supreme Court had declared over and over again that such matters were the province of the states; that "speaking generally, the police power is reserved to the states and there is no grant thereof to Congress in the Constitution."[1] For some years, however, Congress had been finding ways to legislate indirectly upon matters which it had no power to approach directly. Under the grant of power in the Constitution "to regulate commerce with foreign nations and among the several States,"[2] Congress had enacted laws purporting to regulate commerce but in reality designed for the suppression or regulation of some other form of activity. These enactments had for the most part been sustained as constitutional by the Supreme Court (though with misgivings and sharp differences of opinion), the Court holding that it could not pass on the motives for congressional action. The enactment of a law regulating child labor seemed therefore but another step along a trail already blazed, and Congress determined to take that step.

[Footnote 1: Keller v. United States, 213 U.S., 138.]

[Footnote 2: Art. I, Sec. 8.]

The statute enacted by Congress[1] prohibited transportation in interstate commerce of goods made at a factory in which, within thirty days prior to their removal therefrom, children under the age of fourteen years had been employed or permitted to work, or children between the ages of fourteen and sixteen had been employed or permitted to work more than eight hours in any day, or more than six days in any week, or after the hour of 7 P.M. or before the hour of 6 A.M. The constitutionality of the act was at once challenged and suit brought to test the question. The Supreme Court held, by a vote of five to four,[2] that Congress had overstepped its power. The previous decisions which had upheld somewhat similar inroads on the police power of the states were distinguished and the act was declared unconstitutional.

[Footnote 1: Act of September 1, 1916, 39 Stat., 675.]

[Footnote 2: Hammer v. Dagenhart, 247 U.S., 251.]

The distinction drawn by the majority of the Court between this and previous decisions was a narrow one and its validity has been questioned by some writers. It has nowhere been more clearly explained than in an address delivered before a body of lawyers by a former member of the Court.[1] Mr. Hughes said:

There has been in late years a series of cases sustaining the regulation of interstate commerce, although the rules established by Congress had the quality of police regulation. This has been decided with respect to the interstate transportation of lottery tickets, of impure food and drugs, of misbranded articles, of intoxicating liquors, and of women for the purpose of debauchery. It was held to be within the power of Congress to keep "the channels of interstate commerce free from immoral and injurious uses." But the Court in this most recent decision has pointed out that in each of these cases "the use of interstate commerce was necessary to the accomplishment of harmful results." The Court, finding this element to be wanting in the Child Labor Case, denied the validity of the act of Congress. The Court found that the goods shipped were of themselves harmless. They were permitted to be freely shipped after thirty days from the time of removal from the factory. The labor of production, it was said, had been performed before transportation began and thus before the goods became the subject of interstate commerce.

The fundamental proposition thus established is that the power over interstate commerce is not an absolute power of prohibition, but only one of regulation, and that the prior decisions in which prohibitory rules had been sustained rested upon the character of the particular subjects there involved. It was held that the authority over interstate commerce was to regulate such commerce and not to give Congress the power to control the states in the exercise of their police power over local trade and manufacture.

[Footnote 1: Charles E. Hughes, President's Address, Printed in Year Book of New York State Bar Association, Vol. XLII, p. 227 et seq.]

Congress did not receive this decision of the Supreme Court submissively. On the contrary, plans were laid to nullify it. The effort to legislate on child labor under cover of the power to regulate commerce having failed, recourse was had to the constitutional grant of power to lay taxes. Within six months after the decision of the Supreme Court declaring the act unconstitutional was announced, another statute similar in purpose and effect was enacted as part of a Federal Revenue Act.[1] This act provided for an additional tax of ten per cent. of the net profits received from the sale or distribution of the product of any establishment in which children under the age of fourteen years had been employed or permitted to work or children between the ages of fourteen and sixteen had been employed or permitted to work more than eight hours in any day or more than six days in any week or after the hour of 7 P.M. or before the hour of 6 A.M. during any portion of the taxable year. In other words, the law which had been declared void was substantially reenacted, with the substitution of a prohibitive tax for the clause prohibiting transportation in interstate commerce.

[Footnote 1: Revenue Act of 1918, Title XII.]

There was no pretense that this act was enacted for the purpose of raising revenue. The revenue feature was merely legislative camouflage. To quote the words of Justice Holmes in a recent case,[1] "Congress gave it the appearance of a taxing measure in order to give it a coating of constitutionality."

[Footnote 1: United States v. Jin Fuey Moy, 241 U.S., 394.]

The debate in the Senate was highly illuminating.[1] Its sponsors admitted that the measure was not expected or intended to produce revenue but was designed to regulate child labor and nullify the decision of the Supreme Court. Senators learned in the law conceded that if this purpose and effect were declared on the face of the act, or were necessarily inferable from its provisions, it must inevitably be declared unconstitutional. Reliance was placed, however, on the facts that the act was entitled "A bill to raise revenue," and that its provisions did not necessarily, on their face, belie this label. It was argued that the Supreme Court would be bound, under its own previous rulings, to treat the act as if it were what it purported on its face to be—a revenue measure—and to ignore common knowledge and senatorial admissions to the contrary. The measure passed the Senate by a substantial majority and was enacted as part of the revenue bill then under consideration, from which it has been carried forward into the present revenue law.

[Footnote 1: See "Congressional Record" of December 18, 1918.]

There the matter stands at this writing. A District Court judge has declared the new act unconstitutional but the question has not yet been passed upon by the Supreme Court.

It would be venturesome to attempt to predict what the Supreme Court will do about it. Many constitutional lawyers seem to think that Congress has succeeded in its attempt and that the act will be sustained. Certainly there are strong precedents pointing that way. Three in particular will be relied upon—the Veazie Bank case, the Oleomargarine case and the Narcotic Drug Act case.

In the Veazie Bank case[1] the Supreme Court upheld the validity of a so-called tax law whose purpose and effect were to suppress the circulation of notes of the state banks. In the Oleomargarine case[2] the Court upheld a tax whose purpose and effect were to suppress the manufacture and sale of oleomargarine artificially colored to look like butter. In the Narcotic Drug case[3] the Court upheld a tax imposed by the so-called Harrison Act[4] whose purpose was to regulate the sale and use of narcotic drugs. In each of these cases there could be no doubt in the mind of any intelligent man as to the motive for the enactment. The Court has uniformly maintained, however, that

when Congress acts within the limits of its constitutional authority, it is not the province of the judicial branch of the Government to question its motives.[5]

[Footnote 1: Veazie Bank v. Fenno, 8 Wall., 533, decided in 1870.]

[Footnote 2: McCray v. United States, 195 U.S., 27, decided in 1904.]

[Footnote 3: United States v. Doremus, 249 U.S., 86, decided in 1919.]

[Footnote 4: 38 Stat., 785.]

[Footnote 5: Smith v. Kansas City Title Company, 255 U.S., 180, 210.]

In the Narcotic Drug Act case[1] the Court held

While Congress may not exert authority which is wholly reserved to the states, the power conferred by the Constitution to levy excise taxes, uniform throughout the United States, is to be exercised at the discretion of Congress; and, where the provisions of the law enacted have some reasonable relation to this power, the fact that they may have been impelled by a motive, or may accomplish a purpose, other than the raising of revenue, cannot invalidate them; nor can the fact that they affect the conduct of a business which is subject to regulation by the state police power.

[Footnote 1: United States v. Doremus, 249 U.S., 86.]

It is true that, while the Supreme Court may not question congressional motives, it cannot escape the obligation to construe a statute in the light of its true nature and effect. The Court has said:[1]

The direct and necessary result of a statute must be taken into consideration when deciding as to its validity, even if that result is not in so many words either enacted or distinctly provided for. In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect.

[Footnote 1: Collins v. New Hampshire, 171 U.S., 30.]

As already indicated, however, the nature and effect of a statute must ordinarily be determined from the form and contents of the act itself, rather than from outside sources, and the measure under consideration purports to be a revenue act.

In the light of the decisions and principles of interpretation to which reference has been made, the case against the constitutionality of the act may seem well-nigh hopeless. The fact remains, however, that Congress has not met the fundamental objection raised by the Supreme Court. The Court declared the former act unconstitutional, not only because it transcended the power of Congress under the particular provision of the Constitution then invoked, viz., the Commerce Clause, but also on the broad ground of state rights, because it "exerts a power as to a purely local matter to which the federal authority does not extend." It is difficult to see how this objection is obviated by reenacting the act as a revenue measure. Under the circumstances perhaps the apprehensive foes of federal encroachment should withhold their lamentations until the Supreme Court has spoken again.[1]

[Footnote 1: Since this chapter was put into print the Court has spoken. In Bailey v. The Drexel Furniture Co. (decided May 15, 1922) the Child Labor Tax Law was pronounced unconstitutional. The Court, while conceding that it must interpret the intent and meaning of Congress from the language of the act, held that the act on its face is an attempt to regulate matters of state concern by the use of a so-called tax as a penalty. The opinion of the Court, written by Chief Justice Taft, is an emphatic assertion of the duty and function of the Court to preserve the constitutional equilibrium between nation and states.]



A century ago the United States Supreme Court was the bulwark of national power against the assaults and pretensions of the states. To-day it is the defender of the states against the encroachments of national power. Let no one suppose, however, that this is because the Court itself has faced about. On our revolving planet a ship may be sailing toward the sun at sunrise and away from the sun in the afternoon without having changed its course. The Supreme Court has been the most consistent factor in our governmental scheme. While there have been differences of viewpoint between liberal constructionists and strict constructionists among its members, the Court on the whole has steered a fairly straight course. What has really altered is the environment in which the Court moves. The earth has been turning on its axis. The frame of mind of the people who compose states and nation has changed.

At the outset (to cling for a moment to our nautical metaphor) the Court was obliged to put forth on an unknown sea. Its sailing orders under the new Constitution were unique. Precedents, those charts and lighthouses of the judicial mariner, were lacking. Progress was tentative and groping. Little wonder therefore that at first the business of the Court was meager and membership in its body seemed less attractive than membership in the judiciary of a state. Robert Hanson Harrison, one of President Washington's original appointees to the Supreme bench, declined to serve, preferring to accept a state judicial office. John Rutledge, another of the original appointees, resigned after a few months, preferring the position of Chancellor of his native state to which he had been chosen. John Jay, the first Chief Justice, resigned to become Governor of New York, and later declined a reappointment as Chief Justice in words indicating entire lack of faith in the powers and future of the Court.

Nevertheless, the first period of the Court was by no means barren of achievement. A beginning was made. The supremacy of the national authority under the new Constitution was asserted. So stoutly indeed was it maintained in the memorable case of Chisholm v. Georgia,[1] that the country was thrown into a ferment. The Court had entertained a suit against a sovereign state by a private citizen of another state and rendered a decision in favor of the private citizen. The legislature of the sovereign state concerned (Georgia) responded by a statute denouncing the penalty of death against anyone who should presume to enforce any process upon the judgment within its jurisdiction. The matter was taken up in Congress and resulted in the proposal, and subsequent ratification by the states, of a constitutional amendment designed to prevent such actions in future.[2] It has been the fashion to speak of this incident as a striking example of the recall of judicial decisions. Such indeed it was. The decision did not suit the popular frame of mind and was promptly overruled in the method prescribed by the Constitution. It went a long way, however, toward establishing the Supreme Court as a power to be reckoned with on the side of national supremacy and authority.

[Footnote 1: 2 Dallas, 419, decided in 1793.]

[Footnote 2: Amendment XI.]

Three years later the Court again took occasion to assert the national supremacy in no uncertain fashion. The case was Ware v. Hylton[1] and the Court laid down the proposition that a treaty of the Federal Government (in this case the treaty of peace with Great Britain) nullified previous state laws dealing with the subject matter. It is an interesting circumstance that one of the counsel on the losing side in this case was John Marshall of Virginia, and that this was the only case he ever argued before the tribunal through which he was destined to play so momentous a part in history.

[Footnote 1: 3 Dallas, 199, decided in 1796.]

In the annals of the Supreme Court and the development of American constitutional law the name of John Marshall stands preeminent. He was appointed Chief Justice by President John Adams, and took his seat on the Bench at the beginning of the new century (February 4, 1801). He was without judicial experience, but his record in other fields of activity and his well-known Federalist principles pointed him out as a man to be reckoned with and explain the aversion with which he was viewed by Thomas Jefferson, the incoming President. The breach between the President and the Chief Justice was widened by some of the early decisions of the latter upholding the supremacy of the National Government and the powers of the Supreme Court, notably the famous case of Marbury v. Madison,[1] in which was asserted the power of the Court to declare an act of Congress void as in conflict with the Constitution. Some years elapsed, however, before a case was decided which squarely involved a conflict between the powers of the Federal Government and the powers of a state. The issue came up in the case of United States v. Judge Peters.[2] This case involved a conflict of jurisdiction between the federal courts and the authorities of the State of Pennsylvania over the distribution of some prize money. Marshall's decision was a strong assertion of the federal jurisdiction and power. The Governor of Pennsylvania, under sanction of the state legislature, called out the state militia to resist enforcement of the judgment of the Court. Matters were tense for a time and bloodshed seemed imminent but the state finally backed down.

[Footnote 1: 1 Cranch, 137.]

[Footnote 2: 5 Cranch, 115, decided in 1809.]

In the following year (1810) came the case of Fletcher v. Peck,[1] in which for the first time a statute of a state was held by the Supreme Court to be void as repugnant to the Federal Constitution. The State of Georgia had sought by statute to destroy rights in lands acquired under a previous act. It was held that the statute was unconstitutional as impairing the obligation of contracts within the meaning of the Constitution.

[Footnote 1: 6 Cranch, 87.]

In Martin v. Hunter's Lessee[1] was asserted the right of the Federal Supreme Court to overrule the judgment of a state court on questions arising under the Federal Constitution. The State of Virginia had denied that right and the Supreme Court reversed the judgment of the Virginia Court of Appeals.

[Footnote 1: 1 Wheat., 304 (1816.)]

In McCulloch v. State of Maryland,[1] a case involving an attempt by the State of Maryland to tax the Bank of the United States, Marshall's doctrine of implied powers was elaborated, and the judgment of the state court upholding the tax was reversed.

[Footnote 1: 4 Wheat., 316 (1819).]

In the Dartmouth College case[1] the doctrine of the inviolability of contracts against attack by state legislation was further developed. An act of the state legislature of New Hampshire had sought to alter the charter of Dartmouth College, and the New Hampshire courts had upheld the legislature. The Supreme Court reversed the state court and declared the statute unconstitutional under the clause of the Constitution which declares that no state shall make any law impairing the obligation of contracts.

[Footnote 1: Dartmouth College v. Woodward, 4 Wheat., 518 (1819).]

In the great case of Gibbons v. Ogden[1] the Court asserted the paramount jurisdiction of the National Government over interstate commerce. This was one of the most important and far-reaching of all Marshall's decisions. An injunction had been granted by Chancellor Kent and unanimously sustained by the Court of Errors of New York, restraining Gibbons from navigating the Hudson River by steamboats licensed by Congress for the coasting trade on the ground that he was thereby infringing the exclusive right, granted by the legislature of New York, to Robert R. Livingston and Robert Fulton to navigate the waters of the state with vessels moved by steam. The Supreme Court reversed the state courts and held the New York legislation void as an interference with the right of Congress, under the Constitution, to regulate interstate commerce.

[Footnote 1: 9 Wheat., 1 (1824).]

These were only a few of that series of great decisions which stand out like mountain peaks on the horizon of our national life. Marshall's judgments transformed a governmental experiment into something assured and permanent. They confirmed the national supremacy and made the Constitution workable.

Marshall is known to history for his work in vindicating the national power under the Constitution. That was the need in his day and he met it with superlative wisdom and skill. It would be a mistake, however, to suppose that he favored federal encroachment upon the powers reserved to the states. On the contrary, he rendered decisions in favor of state rights which would be notable were they not overshadowed by the greater fame of the decisions which went to the building of the nation.

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