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cifically delegated to it, and where the power to control through lack of such delegation remained in the several States, in the States themselves the let-alone policy was generally adopted, and in the economic evolution of corporations and particularly of corporations exercising and enjoying public franchises, the result was that not only the national interests but the interests of the people of the several States themselves were disregarded by the great corporations, which had as a rule very controlling influence not only in the State Legislatures but in the National Congress. The time at
The time at length arrived when it became imperatively necessary that there should be some co-ordination of regulative provisions, and the result was the passage by Congress of the Interstate Commerce Law, which was followed by a large body of most important constitutional jurisprudence delimiting afresh the powers of the Nation and the States, and again passing upon the great fundamental issues of nationalism and federalism.
The war for the Union was a war for nationalism as against federalism. When the truth is clearly seen it will be recognized that it was not fundamentally a war for moral principles, but one growing out of economic causes involving the question as to whether should have a national economic state in supreme control of our share of the continent or whether there should be on the one hand a series of quasi-independent economic states, bound together by the principle of confederation as a limitation on nationality, or whether there should be two nations, one founded upon the economic principle of freedom and the other upon the economic principle of slavery. The result of the conflict was strictly in keeping with the tendency which had begun to make itself felt from the day of the adoption of the Constitution — that is to say, the tendency from federalism to nationalism. The opponents of this tendency, always seeking the largest liberty for the promotion of their individual interests as distinguished from the economic welfare of the nation, which was the exercise of the highest privilege ever enjoyed by man — namely, that of enslaving his fellow man — always and invariably sought refuge behind the doctrine of “States' rights" and the theory of " local self-government.” The North believed that, so far
as the territories were concerned, the nation had a right to exclude slavery. The South contended the nation had no such power, and finally even secured the decision of the Supreme Court of the United States to that effect.
" the house was divided against itself” and the conflict had become “ an irrepressible one."
Now, under conditions of civilization there are in reality always two great organizations in all communities — the economic organization, which is known to publicists and economists as the Economic State, and the political organization, which is known to them as the Political State, or the Nation. The Economic State, however, is primordial, and has from the beginning of history invariably and without exception always dominated, controlled and dictated the ultimate form of the Political State. Whenever there has been a conflict between the two, whenever there has been an irreconcilable failure of coincidents, the result has been a change in the political constitution in order to reconcile it with the economic constitution. And wherever certain economic tendencies growing out of the inadequacy or insufficiency of the political constitution to protect the commonwealth have become dangerous to the people as a whole the wrong has been rectified either by constitutional evolution looking to the preservation of the national life against individual encroachment or by abrupt and cruel revolution. This is the key to the history of all revolutions, bloody or bloodless - of the Roman revolution, from the time of Gracchus to Augustus; of the Cromwellian revolution in England, of the English revolution of 1688, of the French revolution of 1789, of the revolt of the English colonies in 1776, of the South American revolutions against Spain during the first two decades of the nineteenth century, of the French revolutions of 1820 and 1848, and of the tremendous constitutional revolution in Germany which resulted in the formation of the present empire, and, it goes without saying, of our own civil war and the constitutional revolution which followed
The history of the evolution of nationalism in the United States demonstrates that the strengthening of the Nation and the weakening of the State, wherever the exercise or failure of exercise of
State power makes against the national welfare is a tendency as inevitable and as irresistible as the flow of the tides or the rising and the setting of the sun, unless it be that the nation is to enter upon a stage of dissolution instead of pursuing a normal process of evolution, which means the continuance of the vigor, and involves even the life, of the American people as a homogeneous body.
Throughout our history one or another form of economic privilege has invariably sought political license for its existence by appeal to the principle of “States' rights” or “ local self-government.” The present inconceivably tangled condition of affairs in the United States is due primarily to the fact that we have forty-six sovereignties, to each of which the seekers of privilege may appeal, and every one of which sovereignties may permit the existence of conditions which make against the national welfare. Thus the State of New Jersey, by its laws for the organization and management of corporations, has been the fruitful mother of legal conditions which have virtually tied the hands of the national government, and made the national law against combination tending to the creation of monopolies inimical to the welfare of the nation as a whole practically unenforceable.
The appeal will always be made, as it was made in 1832, in 1850, 1854 and in 1860, to the Constitution; and the sacredness of so-called constitutional right will be the asylum in which the enemies of the national welfare — that is to say, the welfare of the whole people as distinguished from the privilege of individuals to absorb the national wealth and to control the political power of the nation — will seek refuge. There will be endless appeals to the purpose and intention of the “Fathers." The written Constitution will be dwelt upon, and to it will be given such construction as the interests of the privileged classes may dictate.
But what is the Constitution ? The written Constitution no more resembles the actual Constitution of this nation than the anatomical skeleton resembles the outward body or indicates the physiological constitution of the man. Our present Constitution is to be found not in the famous document adopted in 1787 and the amendments that have been formally made thereto, but in the decisions of the Supreme Court of the United States, which show our constitutional law to be a thing conditioned upon and in perfect and full harmony with the economic and moral life of the people as a nation — something mobile, just as the national life is mobile; not a principle of immobility, which means death, but of mobility, which means life and growth.
Certain specific requirements of the Constitution have become absolutely dead letters, pure fiction, and bear no more relation to the existing conditions than the twelve tables bore to the Roman law in the time of Justinian. Such, for instance, is the provision with regard to presidential electors. It was an undemocratic provision and the people soon found a means for its perfect nullification. The reasons given by Hamilton for its creation wero applied in another way by the people, and instead of having the President elected by a body of independent electors party conventions were invented, each convention being a body of primary electors aetuated by the precise motives, as far as humanly possible, which Hamilton thought would actuate the Electoral College, but whose ultimate determination became final and conclusive upon the Electoral College and made of it a mere piece of machinery, an incumbrance, a survival fit only for the institutional scrap pile!
The clause with regard to the regulation of commerce between the States has had various interpretations according to the condition of the national economic state at the time of the interpretation; and our present constitutional law, resulting from a long series of judicial constructions, is something which would be as unrecognizable by, and as foreign to the thought of, the “Fathers” as the economic conditions under which we live would be. They never had any forethought or conception of the possibility of either, and their opinions are as valueless to us as last year's almanac or as the literature of medicine which was written be fore Harvey's discovery of the circulation of the blood or before the recognition of the germ theory of disease.
Vested interests always will be found looking backward and favoring the continuance of the conditions which have made possible their growth and power. The great bulk of the American people will be found looking forward and considering only those conditions which look to a more perfect control, both State and national, in respect to all things which involve the entire nation as a commonwealth. Mr. Root's correctness of prophecy of December, 1906, that the failure of the State to curb predatory wealth will certainly result in a continuous strengthening and centralization of power in the nation is beyond question.
Even as recently as the time between the repeal of the Missouri Compromise in 1854 and the close of General Grant's second term, after reconstruction was practically accomplished, the national control of railroads and of telegraphs was practically undreamed of; and yet there is to-day no sane economist or publicist who denies the right of such national control as a constitutional necessity.
This case may be taken as typical and illustrative. The enactment of the national pure food bill — the necessity for which is undeniable — is enough to make each individual member of the Constitutional Convention of 1787 turn in his grave! Between their day and ours a complete change has come over the character of our population. Great cities and the most fruitful agricultural communities in the world have grown up in what was wilderness when Clay introduced his Compromise resolutions in 1850 and when Webster made his famous 7th of March speech. A single city has come to have a population of nearly four and a half million people, in which alone there are more Irish than in Dublin, more Italians than in Rome, more Germans than in Munich or Vienna and more Jews than there ever were in Jerusalem, if not in all of Palestine! The increment of national population from immigration alone has reached 1,300,000 a year! America is depopulating Europe, and since 1865 there has either been born or come in as immigrants a totally new people, who never think of themselves as citizens of the State in any other sense than that in which they think of themselves as citizens of their city or their village. They think of themselves first and foremost as Americans, not as Virginians, not as Pennsylvanians; and they recognize the complete and full primacy of the national government in everything which affects the national life. Wherever State laws further or abet conditions which militate against the welfare of the nation as a whole they look to the national govern