Read Ebook: Our Changing Constitution by Pierson Charles W Charles Wheeler

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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.

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 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. 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.

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 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 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. Another very recent example is afforded by the Migratory Bird Treaty with Great Britain. 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.

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." 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; 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; an act to prevent the importation of prize-fight films. 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.

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. Also to invade the police power of the States in respect of the regulation of the sale and use of narcotic drugs. Also to check speculation and extortion in the sale of theatre tickets! 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.

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:

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.

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 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 and the Narcotic Drug Act was sustained 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.

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:

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.

THE EIGHTEENTH AMENDMENT

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.

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 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.

The Attorney General of the State of Rhode Island argued 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....

The Attorney General of the State of New Jersey:

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.

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

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.

Elihu Root, pre?minent as a constitutional lawyer, appeared as counsel in one of the test cases. His main contention was summarized in his brief as follows:

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.

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

That the natural and ordinary meaning of the words used in Article V of the Constitution limits the power granted to the function of constitution-making as distinguished from ordinary law-making.

That the purposes of the grant imply the same limitation.

That other parts of the Constitution--notably Article I--express the same limitation.

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.

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." The Court, however, adopted the very unusual course of deciding the various cases before it 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:

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:

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.

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:

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.

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 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. 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 , the Election of Senators by Popular Vote Amendment , the Prohibition Amendment , and the Woman Suffrage Amendment 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.

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. Thereupon Congress practically re?nacted 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.

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.

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