Our Changing Constitution

by Charles W. Pierson

OUR CHANGING CONSTITUTION

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.]