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where public opinion sets strongly in favour of the line of conduct which the Legislature has followed in stretching the Constitution, the Courts are themselves affected by that opinion, and go as far as their legal conscience and the general sense of the legal profession permit-possibly sometimes even a little farther-in holding valid what the Legislature has done. This occurs most frequently where new problems of an administrative kind present themselves. The Courts recognize, in fact, that "principle of development" which is potent in politics as well as in theology. Human affairs being what they are, there must be a loophole for expansion or extension in some part of every scheme of government; and if the Constitution is Rigid, Flexibility must be supplied from the minds of the Judges. Instances of this kind have occurred in the United States, as when some twenty years ago the Supreme Court recognized a power in a State Legislature to deal with railway companies not consistent with the opinions formerly enounced by the Court, though they disclaimed the intention of overruling those opinions.
13. THE PRESENT MEANING OF THE CONSTITUTION: THE
The importance of this question of judicial extension of the Constitution has greatly increased during the last few years because of the development of large industrial enterprises and the consequent appearance of difficult problems of corporate management. Shall Congress be enabled to deal with these great problems? If so, by what process? Manifestly the framers of the Constitution contemplated no such industrial or economic questions as now confront the country. Must the Constitution, then, be amended when each new situation arises, or may its meaning be so understood as to warrant the exercise of powers appropriate to the central government under any situation? Each of these positions has its advocates, their views standing in sharp contrast to one another. Professor Henry Wade Rogers of Yale University holds to the strict view and states the case as follows: .
A disposition has manifested itself to ignore the canons of constitutional construction which have heretofore guided the
courts of this country, and to establish a new theory which shall give to the Constitution that quality of elasticity which is the characteristic of the common law. The Constitution is itself beginning to be regarded by some of our people as an antiquated document which has been outgrown, and which established a government that was democratic in name but anti-republican in fact. An antipathy is expressed to the limitations of power which the Constitution has imposed and which the Fathers reverenced and deemed necessary. These tendencies are found to some extent in both of the great parties and in all sections of the country. The tendencies are increasing and they should be earnestly opposed and strenuously resisted. It is not surprising that, among eighty-five millions of people, theories of government should be advanced which are false, visionary and mischievous. But the expression of such views need not occasion any serious apprehension. The American people, in their final judgment, are not likely to go wrong, or consent that reckless innovation shall proceed unchecked. The foundation principles of our institutions are not to be undermined and destroyed.
In one of his speeches, Mr. Secretary Root has said:
"It is useless for the advocates of State rights to inveigh against the supremacy of the constitutional laws of the United States or against the extension of national authority in the fields of necessary control, when the States themselves fail in the performance of their duty. The instinct for self-government among the people of the United States is too strong to permit them long to refute anyone's right to exercise a power which he fails to exercise. The governmental control which they deem just and necessary they will have. It may be that such control would better be exercised in particular instances by the government 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."
In other words, centralization of power in the nation is to be accomplished not by amendment of the Constitution depriving States of rights which are now theirs under the
Constitution, but they are to be deprived of those rights by construction and interpretation. The revolutionary character of these utterances will be better understood if they are read in the light of the principles laid down by the leading authority on American Law. In his great work on Constitutional Limitations, Mr. Justice Cooley says:
"A constitution is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have so changed as to make a different rule in the case seem desirable. A court or Legislature which should allow a change in public sentiment to influence it in giving to a written Constitution a construction not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty. What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances require. The meaning of the Constitution is fixed when it is adopted, and it is not different at any subsequent time when a Court has occasion to pass upon it."
This, it should be needless to say, is the doctrine of the Supreme Court. That Court has lately said:
"The Constitution is a written document; as such its meaning does not alter. That which it meant when adopted, it means now. Those things which are written within its grant of power, as those grants were understood when made, are still within them; and those things not within them remain still excluded. As long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers."
To be told by men in high authority that the Constitution is to be changed by construction and interpretation, so that it shall mean something different from what it says and from what it has always been understood to mean, and from what it was intended to mean by those who framed and adopted it, is evidence of an extraordinary disregard of the accepted principles of courts and commentators.
The proposal to discard the idea that the constitution always means the same thing, and to adopt the theory that the courts shall by construction make it mean what the people
want it to mean or what the exigencies of the occasion may seem to require it to mean, is in effect to propose that the Supreme Court shall have the power, by a vote of five to four, to amend the instrument according to their views as to what it is desirable it should mean. This power the courts are to have in order to give elasticity to the Constitution. The Constitution points out the method by which the people are to amend it when, in their judgment, it needs amendment. But as the people have not made much use of the amending power, it is concluded that instead of requiring a change in the Constitution to be ratified by the Legislatures of three-fourths of the several states, as the framers provided, it will be much the simpler and easier way just to permit the Supreme Court to make the change by construction, even though it be by a five to four vote, so construing the words used in the instrument as to give them, not the meaning which those who framed and adopted the instrument meant them to have, but the meaning which the majority of the court may think that the people at that particular time most approve. To secure the approval of five of the judges of the Supreme Court may be less troublesome than to secure the approval of the Legislatures of thirty-four states. But any theory of construction which makes the Constitution mean what a majority of the people think at a given time it should mean, is certainly not in accordance with the law and the prophets. A Federal judge of an inferior court, in a paper read before the American Bar Association at Portland in August last, argued in support of this new theory. But as Mr. Justice Harlan of the Supreme Court of the United States has said, those who hold to this theory are "happily, few in number." Continuing, Justice Harlan declared that "such theories of constitutional construction find no support in judicial decisions or in sound reason, least of all in the final judgments of that tribunal whose greatest function is to declare the meaning and the scope of the fundamental law.”
14. THE PRESENT MEANING OF THE CONSTITUTION: THE
On the other hand, Judge Charles F. Amidon of the United States District Court for South Dakota, holds that the Constitution must be constantly given new meanings to meet new conditions as they arise: .
At this time when constitutional questions are being discussed with unusual zeal, it has seemed to me worth while to bring before us in a single vision both these aspects of our constitutional life. They have seldom been looked at together, but in debate each side has put forward the one or other according to its immediate needs. They embody the progressive and conservative forces of the nation. To give over the entire field to either would be equally disastrous. If we accept the notion that our constitution is absolutely rigid and changeless, our government becomes a kind of legal Calvinism, logically perfect, perhaps, but wholly unfit for life. The national growth would be cramped and arrested, and confined to a purely historic mould. The dead hand of the past is oppressive when laid upon property, but becomes the worst form of tyranny when laid upon the powers of government. On the other hand, if we exalt our constitutional practice to be the only rule of conduct, all the benefits of written constitutions are swept away. The government becomes solely a control by the majority. Oblivious of the wisdom of the past, it is ruled by the passions and prejudices of the hour. The nation has been wiser than the partisans of either our theory or our practice. In utter disregard of nice logical consistency, it has insisted upon combining them both, and in their union has found that mingling of flux and permanence which constitutes the living principle of every great historic nation.
Of late we have heard quoted again and again, from the Bench and from the platform, the language of Chief Justice Taney in the Dred Scott case, that the constitution "Speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its