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framers." The only objection to that fine phrase is that it is not true. The exact contrary would be nearer the truth, viz.: That not a single distinctive word or phrase in the constitution has the same meaning to-day which it had when that instrument came from the hands of its framers. Such language is as reprehensible from that side of the controversy as on the other side are the words of the impassioned phrase-maker referred to by Senator Knox in his very able address at Yale. With a practical and rapidly progressive people like ours, the pharisaical doctrine that the nation exists for the constitution instead of the constitution for the nation, can never obtain permanent acceptance. The constitution performs its chief service when it holds the nation back from hasty and passionate action, and compels it to investigate, consider and weigh until it is made sure that the proposed action does not embody the passion of the hour, but the settled purpose of the years. A changeless constitution becomes the protector not only of vested rights but of vested wrongs. As Bacon says, "He that will not apply new remedies must accept new evils, for time is the greatest innovator. A froward retention of custom is as turbulent a thing as any innovation." A constitution which fixedly restrains a people from correcting their actual evils becomes associated in the popular mind with the evils themselves. When it performs that role, as ours once did, it becomes in the estimation of reformers a "compact with hell," and enlightened statesmen appeal from its provisions to a "higher law."
But it is now insisted with a zeal such as has not been heard since John Taylor of Caroline, that if the constitution is to be changed it must be done in the manner which the instrument itself provides for its amendment. To say that, however, is to say that it shall not be changed at all, for we are taught by. a century of our history that the constitution can no longer be thus amended. Since 1804 more than two thousand amendments have been proposed. Many of them have been the subject of much public discussion, have found a place in party platform; some have received the requisite vote of one branch
of Congress; but with the exception of the war amendments, all have failed of adoption.
The vast enlargement of our country has made the method of amendment provided by the fathers far more difficult than they contemplated at the time. They also believed that they had forever foreclosed the possibility of government by party, and the inauguration of that system has made the plan which they devised unworkable; for any amendment which is proposed by one party encounters the opposition of the other. If objection does not exist to the subject matter, it is called forth by partisan considerations. No amendment, therefore, is possible except when one party controls the legislatures of threefourths of the states, and a two-thirds majority in Congress. This condition has not existed since the early part of the last century, nor is it ever likely to occur again.
But probably the greatest force opposed to constitutional amendment is the fear of radicalism by the large business interests of the country. The wave of socialistic tendency which is now sweeping over all western nations has greatly added to this alarm. Property knows that it is safe under the constitution as it is. There is a very general understanding that formal amendment is impossible. Every year that goes by without such a change strengthens that understanding; but if its power were once broken by an actual amendment, it is impossible to foresee the forces that might be set in operation. Hence with business interests it is the fact of amendment that controls, and not the subject matter.
It is not only true that the constitution cannot be amended in the method which it provides, but that such a change is neither needed nor best. Formal amendment is not suitable to bring about those slight but steady modifications of fundamental law which adapt it to the progressive life of the nation. It is far too violent a remedy for that purpose. The constitution has been and ought to be accommodated to the everchanging conditions of society by a process as gradual as the changes themselves. Like the Kingdom of Heaven, amendments such as these come not by observation. No political
prophet can say of them, Lo, here! or Lo, there! As the result of more than a hundred years of experience the nation has become acquainted with this process of amendment and is satisfied with it. It must now be accepted as a part of our frame of government of equal validity with the constitution itself.
But if the constitution is changed by interpretation will it not be entirely swept away by the process? We hear much of this argument in terrorem. In the minds of its advocates the constitution is a kind of St. Rupert's drop, so fragile that if its elements be disturbed in the slightest degree, the entire combination will explode. Experience tells us that it is made of sterner stuff. After a century of such interpretation by which the instrument has been so altered that Mr. Ford tells us its authors would not know it, it is to-day performing its functions with far greater vigor than during the period following its adoption. Being a great instrument of government it cannot be read in the library. As the late Justice Miller stated to a company of judges and lawyers at St. Paul a short time before his death: "The great questions of constitutional law are not to be finally settled by nine men, however wise, taking them off into a room and reading and studying about them. That is the way we start the process. We place the decision the best we can, according to that light, and then see how it works in its actual application to the national life. Very frequently that illumination shows us that we have gone far to one side of the true line. With this instruction of experience we place the next case on the other side and observe its application and so on, from time to time adding to our thought and study the results of experience and observation, we finally evolve the true solution by a process of exclusion and inclusion. The meaning of the constitution is to be sought as much in the national life as in the dictionary.'
In our constitutional theory we habitually assume that the provisions of the constitution have but one meaning, and that plain and precise. But this is not its real character. As Marshall declares in McCulloch vs. Maryland, "Its nature
requires that only its great outlines should be marked, and its important objects designated. . . It was intended to endure for ages to come, and to be adapted to the various crises in human affairs." An instrument of such a character must necessarily leave a wide latitude for construction. The fact that the Supreme Court in constitutional cases so frequently stands five to four, each division assigning weighty reasons for diametrically opposite views, shows plainly how much the constitution in actual application is a matter of interpretation. Now that questions of government are becoming so largely economic, the majority of our so-called constitutional cases turn not upon the interpretation of the instrument itself, but upon the construction of the living conditions to which it is to be applied.
1-The Nature of the Federal Government, Bryce, J., American Commonwealth, I, 32-37.
2-The Federal Union, Woodburn, J. A., The American Republic, 60–93.
3-Enumerated and Implied Powers, Tiedeman, C. S., The Unwritten Constitution, 129-44.
4 The Rigid Constitution, Higgins, H. B., Political Science Quarterly, XX, 203–22.
RELATIONS BETWEEN STATE AND FEDERAL GOV
15. NEW FIELDS FOR FEDERAL LEGISLATION.
Since the adoption of the Constitution commerce has developed to a degree and in a way undreamed of in that day and has become inextricably involved with the domestic industry of the several states. Hence Congress in regulating interstate commerce and carrying out other provisions of the Constitution has been led to the enactment of measures which a century ago, if they could have been foreseen at all, would very probably have been thought, under the conditions then existing, to have been proper subjects for State control. The extent to which the National Legislature has gone or is likely to go in this direction is very well illustrated by the record of measures considered at a recent session of Congress: .
In the President's last annual message there were no less than eight specific recommendations involving the exercise of new functions, or the assumption of new tasks, by the Federal Government. And if a list were compiled of the suggestions made along the same line by bills now before Congress or resolutions of public bodies-leaving out "freak" bills and constitutional amendments-it would probably be twice as long.
Railroad rate-making happens to be the most conspicuous proposal just at present. This is one of the things the National Government is asked to do because, unless it undertakes the task, it will not be performed at all. The States could not secure the same results even if they co-operated to the full. The same may be said, of course, regarding the proposed regulation of express companies and national supervision of insurance. Other measures widely differing in