Our Changing Constitution

by Charles W. Pierson

XIII

WHAT OF THE FUTURE?

In the preceding pages we have observed from various viewpoints the impressive phenomenon of federal encroachment upon state power. It must have become obvious to the most casual reader that the tide is running swiftly and has already carried far. Hamilton was mistaken when he predicted in the Federalist[1] that the National Government would never encroach upon the state authorities.

[Footnote 1: Federalist, Numbers XVII, XXXI.]

What then of the future? Is the Constitution hopelessly out of date? Are the states to be submerged and virtually obliterated in the drift toward centralization? No thoughtful patriot can view such a possibility without the gravest misgivings. The integrity of the states was a cardinal principle of our governmental scheme. Abandon that and we are adrift from the moorings which to the minds of statesmen of past generations constituted the safety of the republic.

No mere appeal to precedents and governmental theory will check the current. The Americans are a practical people, moving forward with conscious power toward the attainment of their aims, along the lines which seem to them most direct. They are more interested in results than in methods or theories. Experience has demonstrated that federal control often spells uniformity and efficiency where state control had meant divisions and weakness. They favor federal control because it gets results.

There is another aspect of the matter, however. The burden of federal bureaucracy is beginning to be felt by the average man. He is being regulated more and more, in his meats and drinks, his morals and the activities of his daily life, from Washington. If he will only stop and think he must realize that no one central authority can supervise the daily lives of a hundred million people, scattered over half a continent, without becoming top-heavy. He must realize, too, that, even if such a centralization of power and responsibility were humanly possible, our National Government is unsuited for the task. The electorate is too numerous and heterogeneous; its interests and needs are too diverse. Shall the conduct of citizens of Mississippi be prescribed by vote of congressmen from New York, or supervised at the expense of New York taxpayers? Will an educational system suitable for Massachusetts necessarily fit the young of Georgia? Such suggestions carry their own answer. In the very nature of things there is bound to be a reaction against centralization sooner or later. The real question is whether it will come in time to save the present constitutional scheme.

The makers of the Constitution never intended that the people of one state should regulate, or pay for supervising, the conduct of citizens of another state. They made a division of governmental powers between nation and states along broad and obvious lines. To the Federal Government were entrusted matters of a strictly national character—foreign relations, interstate commerce, fiscal and monetary system, post office, patents and copyrights. Everything else was reserved, to the states or the people. Here was a scheme at once explicit and elastic. Explicit as to the nature of the functions to be performed by the National Government; elastic enough to permit the exercise of all other powers reasonably incidental to the powers expressly granted. The Constitution is not, and never was intended to be, a strait-jacket.

Proofs abound of the adequacy of the constitutional scheme to deal with changing conditions. For example, when the Constitution was adopted, railroads, the most powerful economic force in our present civilization, were unknown. Nevertheless, the Constitution contains adequate provision for dealing with the railroads. They are instruments of interstate commerce and may be controlled by the Federal Government under the express grant of power to regulate such commerce. Similar considerations apply in the case of those nationwide industrial combinations popularly known as "trusts." Their activities are largely in the field of interstate commerce and are subject to control as such by the Federal Government. Theoretically, only such activities of the railroads and trusts as are of an interstate character fall within the federal jurisdiction. Everything else lies within the jurisdiction of the states. However, a practical people will not long permit matters which are essentially single and entire in their nature (for example, railroad classifications and rates) to be split up merely for purposes of legal jurisdiction and control. In such matters, therefore, some measure of federal encroachment is inevitable in order that industry and progress shall not be hampered. The encroachment, however, is more apparent than real. The industries are national in scope, and all the activities of each are more or less interwoven and interdependent. Hence state regulation of the intrastate activities may sometimes be overruled as an interference with federal regulation of the interstate commerce. There is nothing in this which involves any real violation of the Constitution. It is merely an application of Marshall's doctrine of implied powers.

Social welfare legislation presents a very different problem. Some of the most dangerous assaults upon the Constitution to-day are being made in that field. The leaven of socialistic ideas is working. Representative government is becoming more paternalistic. Legislation dealing with conduct and social and economic conditions is being demanded by public sentiment in constantly increasing measure. Such legislation for the most part affects state police power and lies clearly outside the scope of the powers conferred by the Constitution on the National Government. Moreover, "the insulated chambers afforded by the several states" (to borrow a phrase of Justice Oliver Wendell Holmes) are ideal fields for social experiment. If an experiment succeed, other states will follow suit. If it prove disastrous, the damage is localized. The nation as a whole remains unharmed. The sponsors for such legislation, however, are seldom content to deal with the states. Reform was ever impatient. The state method seems too slow, and the difficulty of securing uniformity too formidable. Moreover, it often happens that some states are indifferent to the reform proposed or even actively hostile. Accordingly, recourse is had to Congress, and Congress looks for a way to meet the popular demand. There being no direct way, and public sentiment being insistent, Congressmen find themselves under the painful necessity of circumventing the Constitution they have sworn to uphold. The desired legislation is enacted under the guise of an act to regulate commerce or raise revenue, and the task of upholding the Constitution is passed to the Supreme Court.

Such subterfuges, far from arousing public condemnation, are praised by the unthinking as far-sighted statesmanship. It is popular nowadays to apply the term "forward-looking" to people who would make the National Government an agency for social-welfare work, and to characterize as "lacking in vision" anyone who interposes a constitutional principle in the path of a social reform. Friends of progress sometimes forget that the real forward-looking man is he who can see the pitfall ahead as well as the rainbow; the man of true vision is one whose view of the stars is steadied by keeping his feet firmly on the ground.

It cannot be reiterated too often that, under our political system, legislation in the nature of police regulation (except in so far as it affects commerce or foreign relations) is the province of the states, not of the National Government. This is not merely sound constitutional law; it is good sense as well. Regulations salutary for Scandinavian immigrants of the northwest may not fit the Creoles of Louisiana. In the long run the police power will be exercised most advantageously for all concerned by local authority.

The present tendency toward centralization cannot go on indefinitely. A point must be reached sooner or later when an over-centralized government becomes intolerable and breaks down of its own weight. As an eminent authority has put it: "If we did not have states we should speedily have to create them."[1] The states thus created, however, would not be the same. They would be mere governmental subdivisions, without the independence, the historic background, the traditions, or the sentiment of the present states. These influences, hitherto so potent in our national life, would have been lost.

[Footnote 1: Address of Supreme Court Justice Charles E. Hughes before
New York State Bar Association, January 14, 1916.]

In a memorable address delivered in the year 1906 before the Pennsylvania Society in New York, Elihu Root, then Secretary of State in President Roosevelt's Cabinet, discussed the encroachments of federal power and expressed the view that the only way in which the states could maintain their power and authority was by awakening to a realization of their own duties to the country at large. He said:

The Governmental control which they (the people) deem just and necessary they will have. It may be that such control would better be exercised in particular instances by the governments of the states, but the people will have the control they need either from the states or from the National Government; and if the states fail to furnish it in due measure, sooner or later constructions of the Constitution will be found to vest the power where it will be exercised—in the National Government. The true and only way to preserve state authority is to be found in the awakened conscience of the states, their broadened views and higher standard of responsibility to the general public; in effective legislation by the states, in conformity to the general moral sense of the country; and in the vigorous exercise for the general public good of that state authority which is to be preserved.

Those words, spoken fifteen years ago, were prophetic. Moreover, they are as true to-day as when they were uttered.

Will the people see these things in time? Americans with pride in their country's past and confidence in her future dare not say No. The awakening may be slow. Currents of popular will are not readily turned. It is hard to make the people think. But if leaders and teachers do their part American intelligence and prudence will assert themselves, and the slogan of an awakened public sentiment may yet be: "Back to the Constitution!"