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Citizens of the United States are wont to think of their form of
government, a political system based on a written constitution, as
something fixed and stable. In reality, it is undergoing a profound
change. The idea which constituted its most distinctive feature, and in
the belief of many represents America's most valuable contribution to
the science of government, is being forgotten. Formed to be "an
indestructible Union composed of indestructible states," our dual system
is losing its duality. The states are fading out of the picture.

The aim of this volume is to point out the change and discuss some of
its aspects. A few chapters have already appeared in print. "Our
Changing Constitution" and "Is the Federal Corporation Tax
Constitutional?" were published in the _Outlook_. "The Corporation Tax
Decision" appeared in the _Yale Law Journal_. "Can Congress Tax the
Income from State and Municipal Bonds?" was printed in the New York
_Evening Post_. All of these have been more or less revised and some new
matter has been added.



The American Constitution, its origin and contents. Wherein its novelty
and greatness lay. Importance of maintaining the equilibrium established
between national and state power. View of John Fiske.


Place of the Court in the constitutional scheme. Its most important
function. Personnel of the Court. Its power moral rather than physical.
Its chief weapon the power to declare legislative acts unconstitutional.
Limitations on this power - political questions; necessity of an actual
controversy; abuses of legislative power. Erroneous popular impressions.
Impairment of the constitutional conscience.


Change in popular attitude toward the Constitution. Causes of the change
(growth of national consciousness, wars, foreign relations, influence of
later immigrants and their descendants, desire to obtain federal
appropriations, economic development, railroads, free trade among the
states). Methods by which change has been put into effect
(constitutional amendment, treaties, federal legislation under cover of
power to regulate commerce and lay taxes). Attitude of the Supreme
Court. Differences of opinion in the Court.


History and radical character of amendment. Efforts to defeat it in the
courts. Unusual course taken by Supreme Court. Discussion of its true
place in the development of American constitutional law. Less a point of
departure than a spectacular manifestation of a change already under
way. Effect of the change on the principle of local self-government.


Attitude of the Constitution toward question of suffrage qualifications.
Effect of Civil War amendments. Growth of woman suffrage movement and
adoption of Suffrage Amendment. How far the amendment constitutes a
federal encroachment on state power. Effect of woman suffrage on
questions of governmental theory.


The child labor question. Philanthropic and commercial aspects. Attempt
of Congress to legislate under power to regulate commerce. Decision of
Supreme Court holding law unconstitutional. The decision explained.
Reënactment of law by Congress under cover of power to lay taxes.
Arguments for and against constitutionality of new enactment.


The Supreme Court at first a bulwark of national power; to-day the
defender of the states. Explanation of this apparent change. Attitude of
the Court in the first period. The period of Chief Justice Marshall. The
period of Chief Justice Taney. The Reconstruction Period. Attitude of
the Court to-day. Reasons why the Court is unable to prevent federal
encroachment. Attitude of Hamilton and Marshall toward state rights


America's embarrassing position if the late war had come before adoption
of Income Tax Amendment. Limitations of federal taxing power under the
Constitution. Meaning of "uniformity." Apportionment of "direct taxes."
The Supreme Court decision in the Income Tax cases in 1894 a reversal of
long settled ideas. The Income Tax Amendment an example of recall of
judicial decisions. Implied limitations on federal taxing power
(compensation of federal judges, due process clause of the Constitution,
no power to tax property or governmental activities of the states).


No express prohibition of such taxation; it lies in an implied
limitation inherent in our dual system of government. Discussion of
doctrine and its development by the Supreme Court. Effect of the Income
Tax Amendment. Present dissatisfaction with doctrine and efforts to
abolish it.


Nature of the tax. An interference with state power to grant corporate
franchises. Nature of our dual government and Supreme Court decisions on
the subject discussed. The debate in Congress.


Importance of the decision likely to be overlooked. Criticism of the
Court's arguments. Effects of the decision.


Origin and history of Sherman Act. Its meaning now clear. Earlier
uncertainties owing chiefly to two questions - What is interstate trade
and Does the act enlarge the common-law rule as to what restraints were
unlawful? How these questions have been settled. Statement of the
common-law rule. Incompatibility between the law and present economic
conditions. Suggestions for legal reform. The holding company device,
its abuses and the possibility of abolishing it. Advantages of the
scheme of federal incorporation.


Rapid progress and present extent of federal encroachment on state
power. Growth of federal bureaucracy. A reaction against centralization
inevitable sooner or later. Adequacy of Constitution to deal with
changing conditions. The railroads and the trusts. Dangerous assaults
upon Constitution in field of social welfare legislation. Exercise of
police power a matter for local authority. Elihu Root's view. Outlook
for the future.





Few documents known to history have received as much praise as the
United States Constitution. Gladstone called it "the most wonderful work
ever struck off at a given time by the brain and purpose of man." The
casual reader of the Constitution will be at a loss to account for such
adulation. It will seem to him a businesslike document, outlining a
scheme of government in terse and well-chosen phrases, but he is apt to
look in vain for any earmarks of special inspiration. To understand the
true greatness of the instrument something more is required than a mere
reading of its provisions.

The Constitution was the work of a convention of delegates from the
states, who met in Philadelphia in May, 1787, and labored together for
nearly four months. They included a large part of the best character
and intellect of the country. George Washington presided over their
deliberations. The delegates had not been called together for the
purpose of organizing a new government. Their instructions were limited
to revising and proposing improvements in the Articles of the existing
Confederation, whose inefficiency and weakness, now that the cohesive
power of common danger in the war of the Revolution was gone, had become
a byword. This task, however, was decided to be hopeless, and with great
boldness the convention proceeded to disregard instructions and prepare
a wholly new Constitution constructed on a plan radically different from
that of the Articles of Confederation. The contents of the Constitution,
as finally drafted and submitted for ratification, may be described in
few words. It created a legislative department consisting of a Senate
and a House of Representatives, an executive department headed by a
President, and a judicial department headed by a Supreme Court, and
prescribed in general terms the qualifications, powers, and functions of
each. It provided for the admission of new states into the Union and
that the United States should guarantee to every state a republican form
of government. It declared that the Constitution and the laws of the
United States made in pursuance thereof, and treaties, should be the
supreme law of the land. It provided a method for its own amendment.
Save for a few other brief clauses, that was all. There was no
proclamation of Democracy; no trumpet blast about the rights of man such
as had sounded in the Declaration of Independence. On the contrary, the
instrument expressly recognized human slavery, though in discreet and
euphemistic phrases.

Wherein, then, did the novelty and greatness of the Constitution lie?
Its novelty lay in the duality of the form of government which it
created - a nation dealing directly with its citizens and yet composed of
sovereign states - and in its system of checks and balances. The world
had seen confederations of states. It was familiar with nations
subdivided into provinces or other administrative units. It had known
experiments in pure democracy. The constitutional scheme was none of
these. It was something new, and its novel features were relied upon as
a protection from the evils which had developed under the other plans.
The greatness of the Constitution lay in its nice adjustment of the
powers of government, notably the division of powers which it effected
between the National Government and the states. The powers conferred on
the National Government were clearly set forth. All were of a strictly
national character. They covered the field of foreign relations,
interstate and foreign commerce, fiscal and monetary system, post office
and post roads, patents and copyrights, and jurisdiction over certain
specified crimes. All other powers were reserved to the states or the
people. In other words, the theory was (to quote Bryce's "The American
Commonwealth") "local government for local affairs; general government
for general affairs only."

The Constitution as it left the hands of its framers was not entirely
satisfactory to anybody. Owing to the discordant interests and mutual
jealousies of the states, it was of necessity an instrument of many
compromises. One of the great compromises was that by which the small
states were given as many senators as the large. Another is embalmed in
the provisions recognizing slavery and permitting slaves to count in the
apportionment of representatives. (The number of a state's
representatives was to be determined "by adding to the whole number of
free persons ... three-fifths of all other persons.") Another was the
provision that direct taxes should be apportioned among the states
according to population. With all its compromises, however, the
Constitution embodied a great governmental principle, full of hope for
the future of the country, and the state conventions to which it was
submitted for ratification were wise enough to accept what was offered.
Ratification by certain of the states was facilitated by the publication
of that remarkable series of papers afterward known as the "Federalist."
These were the work of Alexander Hamilton, James Madison, and John Jay,
and first appeared in New York newspapers.

One of the objections to the new Constitution in the minds of many
people was the absence of a "bill of rights" containing those provisions
for the protection of individual liberty and property (e.g., trial by
jury, freedom of speech, protection from unreasonable searches and
seizures) which had come down from the early charters of English
liberties. In deference to this sentiment a series of ten brief
amendments were proposed and speedily ratified. Another amendment (No.
XI) was soon afterward adopted for the purpose of doing away with the
effect of a Supreme Court decision. Thereafter, save for a change in
the manner of electing the President and Vice-president, the
Constitution was not again amended until after the close of the Civil
War, when Amendments XIII, XIV, and XV, having for their primary object
the protection of the newly enfranchised Negroes, were adopted. The
Constitution was not again amended until the last decade, when the
Income Tax Amendment, the amendment providing for the election of
Senators by popular vote, the Prohibition Amendment, and the Woman
Suffrage Amendment were adopted in rapid succession. Some of these will
be discussed in later chapters.

It is interesting to note that two of the amendments (No. XI, designed
to prevent suits against a state without its permission by citizens of
another state, and No. XVI, paving the way for the Income Tax) were
called forth by unpopular decisions of the Supreme Court, and virtually
amounted to a recall of those decisions by the people. These instances
demonstrate the possibility of a recall of judicial decisions by
constitutional methods, and tend to refute impatient reformers who
preach the necessity of a more summary procedure. Such questions,
however, lie outside the scope of this book. We emphasize here the fact
that the great achievement of the Constitution was the creation of a
dual system of government and the apportionment of its powers. That was
what made it "one of the longest reaches of constructive statesmanship
ever known in the world."[1] It offered the most promising solution yet
devised for the problem of building a nation without tearing down local

[Footnote 1: Fiske: "The Critical Period of American History," p. 301.]

John Fiske, the historian, writing of the importance of preserving the
constitutional equilibrium between nation and states, said:[1]

If the day should ever arrive (which God forbid!) when the
people of the different parts of our country shall allow their
local affairs to be administered by prefects sent from
Washington, and when the self-government of the states shall
have been so far lost as that of the departments of France, or
even so far as that of the counties of England - on that day
the progressive political career of the American people will
have come to an end, and the hopes that have been built upon
it for the future happiness and prosperity of mankind will be
wrecked forever.

[Footnote 1: Id., p. 238.]

If allowance be made for certain extravagances of statement, these words
will serve as a fitting introduction to the discussions which follow.



The Constitution effected an apportionment of the powers of government
between nation and states. The maintenance of the equilibrium thus
established was especially committed to the Supreme Court. This novel
office, the most important of all its great functions, makes the Court
one of the most vital factors of the entire governmental scheme and
gives it a unique preëminence among the judicial tribunals of the world.

How the office has been performed, and whether the constitutional
equilibrium is actually being maintained, are the questions to be
considered in this book. Before taking them up, however, it will be
useful to glance briefly at the Court itself and inquire how it is
equipped for its difficult task.

The United States Supreme Court at present is composed of nine judges.
The number originally was six. It now holds its sessions at the Capitol
in Washington, in the old Senate Chamber which once echoed with the
eloquence of the Webster-Hayne debate. The judges are nominated by the
President, and their appointment, like that of ambassadors, must be
confirmed by the Senate. The makers of the Constitution took the utmost
care to insure the independence of the Court. Its members hold office
during good behavior, that is to say for life. They cannot be removed
except by impeachment for misconduct. Only one attempt has ever been
made to impeach a judge of the Supreme Court[1] and that attempt failed.
Still further to insure their freedom from legislative control, the
Constitution provides that the compensation of the judges shall not be
diminished during their continuance in office.[2]

[Footnote 1: Justice Samuel Chase of Maryland in 1804-5.]

[Footnote 2: It is interesting to observe that this Court, safeguarded
against popular clamor and composed of judges appointed for life, has
consistently shown itself more progressive and more responsive to modern
ideas than have most of the state Supreme Courts whose members are
elected directly by the people and for limited terms only.]

From the time of John Jay, the first Chief Justice, down to the present
day the men appointed to membership in the Court have, for the most
part, been lawyers of the highest character and standing, many of whom
had already won distinction in other branches of the public service.
The present Chief Justice (Taft) is an ex-President of the United
States. Among the other members of the Court are a former Secretary of
State of the United States (Justice Day); two former Attorneys General
of the United States (Justices McKenna and McReynolds); a former Chief
Justice of Massachusetts (Justice Oliver Wendell Holmes, the
distinguished son and namesake of an illustrious father); a former Chief
Justice of Wyoming (Justice Van Devanter); and a former Chancellor of
New Jersey (Justice Pitney).

It is well that the personnel of the Court has been such as to command
respect and deference, for in actual power the judiciary is by far the
weakest of the three coördinate departments (legislative, executive,
judicial) among which the functions of government were distributed by
the Constitution. The power of the purse is vested in Congress: it alone
can levy taxes and make appropriations. The Executive is
Commander-in-Chief of the Army and Navy and wields the appointing power.
The Supreme Court controls neither purse nor sword nor appointments to
office. Its power is moral rather than physical. It has no adequate
means of enforcing its decrees without the coöperation of other
branches of the Government.

That coöperation has not always been forthcoming. In the year 1802,
Congress, at the instigation of President Jefferson, the inveterate
enemy of Chief Justice Marshall, suspended the sessions of the Court for
more than a year by abolishing the August term. In 1832, when the State
of Georgia defied the decree of the Court in a case involving the status
of the Cherokee Indians, the other departments of the Federal Government
gave no aid and President Andrew Jackson is reported to have remarked:
"John Marshall has made the decision, now let him execute it." In 1868,
Congress, in order to forestall decision in a case pending before the
Court, hastily repealed the statute on which the jurisdiction of the
Court depended.[1] Such instances, however, have been rare. The
law-abiding instinct is strong in the American people, and for the most
part the decisions of the Supreme Court have been received with respect
and unquestioning obedience.

[Footnote 1: See _ex parte McCardle_, 6 Wall. (Supreme Court Reports),
318; 7 _id._, 506.]

The chief weapon in the arsenal of the Court is the power to declare
legislative acts void on the ground that they overstep limits
established by the people in the Constitution. This power has been
frequently exercised. It is stated that the congressional statutes thus
nullified have not numbered more than thirty, while at least a thousand
state laws have been nullified.[1]

[Footnote 1: Brief of Solicitor General James M. Beck in the Child Labor
Tax cases. It is to be borne in mind that there are forty-eight state
legislatures and only one Congress.]

The assumption of this power in the Court to declare statutes
unconstitutional has been bitterly assailed, and is still denounced in
some quarters, as judicial usurpation originated by John Marshall.

On the historical side this objection is not well founded. Various state
courts had exercised the power to declare statutes unconstitutional
before the Supreme Court came into existence.[1] The framers of the
Constitution clearly intended that such a power should be exercised by
the Supreme Court.[2] Moreover, a somewhat similar power appears to have
been exercised long before in England,[3] though it gave place later to
the present doctrine of the legal omnipotence of Parliament.

[Footnote 1: See Bryce: "The American Commonwealth," Vol. I, p. 250.]

[Footnote 2: See e.g., "Federalist," No. LXXVIII.]

[Footnote 3: See opinion of Lord Coke in Bonham's Case, 8 Coke's
Reports, 118, decided in 1610.]

On the side of reason and logic, the argument in favor of the power
formulated more than a century ago by Chief Justice Marshall has never
been adequately answered and is generally accepted as final. He said:[1]

The powers of the legislature are defined and limited; and
that those limits may not be mistaken or forgotten, the
Constitution is written. To what purpose are powers limited,
and to what purpose is that limitation committed to writing,
if these limits may, at any time, be passed by those intended
to be restrained?... The Constitution is either a superior
paramount law, unchangeable by ordinary means, or it is on a
level with ordinary legislative acts, and, like other acts, is
alterable when the legislature shall please to alter it. If
the former part of the alternative be true, then a legislative
act, contrary to the Constitution, is not law: if the latter
part be true, then written constitutions are absurd attempts,
on the part of the people, to limit a power in its own nature

[Footnote 1: _Marbury v. Madison_, 1 Cranch, 176.]

It would seem at first blush that the power in the Court to declare
legislative acts unconstitutional affords a complete safeguard against
congressional encroachment on the prerogatives of the states. Such is
not the fact, however. The veto power of the Court by no means covers
the entire field of legislative activity. In the Convention which
framed the Constitution, attempts were made to give to the judiciary, in
conjunction with the executive, complete power of revision over
legislative acts, but all such propositions were voted down.[1] As
matters stand, there may be violations of the Constitution by Congress
(or for that matter by the executive) of which the Court can take no

[Footnote 1: See e.g., Farrand: "Records of the Federal Convention,"
Vol. I, pp. 138 et seq.; Vol. II, p. 298.]

For one thing, the Court cannot deal with questions of a political
character. The function of the Court is judicial only. Upon this ground
it was decided that the question which of two rival governments in the
State of Rhode Island was the legitimate one was for the determination
of the political department of government rather than the courts;[1]
that the question, whether the adoption by a state of the initiative and
referendum violated the provision of the Federal Constitution
guaranteeing to every state a republican form of government, was
political and therefore beyond the jurisdiction of the Court.[2] In 1867
a sovereign state sought to enjoin the President of the United States
from enforcing an act of Congress alleged to be unconstitutional. The
Supreme Court, without determining the constitutionality of the act,
declined to interfere with the exercise of the President's political
discretion.[3] In the famous Dred Scott case[4] the effort of the
Supreme Court to settle a political question accomplished nothing save
to impair the influence and prestige of the Court.

[Footnote 1: _Luther v. Borden_, 7 Howard, 1.]

[Footnote 2: _Pacific Telephone Co. v. Oregon_, 223 U.S., 118.]

[Footnote 3: _State of Mississippi v. Andrew Johnson_, 4 Wall., 475.]

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