as they arise. By this is not meant, however, that these new conditions shall in any case justify the exercise of a power not granted, or create a limitation not imposed by the Constitution, but that the powers which are granted shall, if possible, be made applicable to these new conditions.

Thus the grant to the Federal Government of the control over interstate and foreign commerce is held to be one the extent of which, though not its importance, is not varied by the fact that the instrumentalities by which it is carried on are widely different from those employed in 1789. On the other hand, if the writing of insurance policies, or the dealing in banking instruments of exchange were not, in 1789, considered interstate commercial transactions, and by reason of their very nature could not properly have been, no augmentation in their amount and no increase in the practical need for their federal regulation will justify a construction that will attach an interstate commercial character to them, and thus bring them within the power of the Federal Government to control.

The principle, as it has been stated, does not prevent a construction by which the powers and limitations enumerated in the Constitution are made applicable to new conditions of fact which were not and could not have been foreseen by those who adopted the Constitution. In the Dartmouth cases Marshall says: "It is more than possible that the preservation of the rights of this description was not particularly in the minds of the framers of the Constitution when the clause under consideration, impairment of contracts, was introduced into that instrument.

It is not enough to say that this particular case was not in the mind of the convention when the article was framed, nor of the American people when it was adopted. It is necessary to go further and to say that had this particular case been suggested the language would have been so varied as to exclude it, or it would have been made a special exception. The case being within the words of the rule, must be within its operations likewise, unless there is something within its literal construction so ob48 4 Wh. 518; 4 L ed. 629.

viously absurd or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expounded the Constitution in making it an exception." Again, in Re Debs1 the court say: "Constitutional provisions do not change, but their operation extends to new matters as the modes of life and habits of the people vary with each succeeding generation. The law of the common carrier is the same to-day as when transportation by land was by coach and wagon and on water by canal-boat and sailing vessel, yet in its actual operation it touches and regulates transportation by modes then unknown. Just so is it with the grant to the National Government of power over interstate commerce. The Constitution has not changed. The power is the same. But it operates to-day upon modes of interstate commerce then unknown to the fathers, and it will operate with equal force upon any new modes of such commerce which the future may develop."

99 50

49 158 U. S. 564; 15 Sup. Ct. Rep. 900; 39 L. ed. 1092.

50 To the same effect, as the foregoing, is the declaration of the court in South Carolina v. United States (199 U. S. 437; 26 Sup. Ct. Rep. 110; 50 L. ed. 261), in which they say: "The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now. Being a grant of powers to a government, its language is general; and, as changes come in social and political life, it embraces within its grasp all new conditions which are within the scope of the powers in terms conferred. In other words, while the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. This in no manner abridges the fact of its changeless nature and meaning. Those things which are within its grants of power, as those grants were understood when made, are still within them; and those things not within them remain still excluded. As said by Mr. Chief Justice Taney in Scott v. Sandford (19 How. 393; 15 L. ed. 691), 'It is not only the same in words, but the same in meaning, and delegates the same power to the government, and reserves and secures the same rights and privileges to the citizen; and 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 and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day."

Justice Story, in Martin v. Hunter's Lessee (1 Wh. 304; 4 L. ed. 97), discussing the principle of construction to be applied to the Constitution, declares: "The instrument was not intended to provide merely for the

§ 27. The Wilson-Roosevelt Doctrine of Construction.

A doctrine of construction radically different from that which has just been stated, and which has never been accepted by the Supreme Court, is that originally put forth by James Wilson of Pennsylvania, and in recent years urged by President Roosevelt.

This doctrine is, that when a subject has been neither expressly excluded from the regulating power of the Federal Government, nor expressly placed within the exclusive control of the States, it may be regulated by Congress if it be, or become, a matter the regulation of which is of general importance to the whole nation, and at the same time a matter over which the States are, in practical fact, unable to exercise the necessary controlling power. According, then, to this doctrine, the Ninth and Tenth Amendments which declare that: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people," and that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," are not to be interpreted as reserving to the States, or to the people, those powers which, though not granted to the Federal Government, are, in fact, such as are of federal importance and which the States are unable effectively to exercise.

The argument of James Wilson, made in 1785 when the United States was under the Articles of Confederation but applicable, a fortiori, to the present Constitution, is in the following language: Though the United States in Congress assembled derive from the particular States no power, jurisdiction, or right

exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications which at the present might seem salutary might in the end prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mold and model the exercise of its powers as its own wisdom and the public interests should require."

which is not expressly delegated by the Confederation, it does not then follow that the United States in Congress have no other powers, jurisdiction, or rights, than those delegated by the particular States. The United States have general rights, general powers, and general obligations, not derived from any particular States, nor from all the particular States taken separately; but resulting from the union of the whole. To many purposes the United States are to be considered as one undivided, independent nation; and as possessed of all the rights, powers and properties by the law of nations incident to such. Whenever an object occurs, to the direction of which no particular State is competent, the management of it must, of necessity, belong to the United States in Congress assembled. There are many objects of this extended nature."

President Roosevelt has expressly adopted the foregoing doctrine as sound. He says: "I cannot do better than base my theory of governmental action upon the words and deeds of one of Pennsylvania's greatest sons, Justice James Wilson." Interpreting this theory, Roosevelt says: "Ile developed even before Marshall the doctrine (absolutely essential not merely to the efficiency but to the existence of this nation) that an inherent power rested in the nation, outside of the enumerated powers conferred upon it by the Constitution, in all cases where the object involved was beyond the power of the several States and was a power ordinarily exercised by sovereign nations. In a remarkable letter in which he advocated setting forth in early and clear fashion the powers of the National Government, he laid down the proposition that it should be made clear that there were neither vacancies nor interferences between the limits of state and national jurisdictions, and that both jurisdictions together composed only one uniform and comprehensive system of government and laws; that is, whenever the States cannot act, because the need to be met is not one merely of a single locality, then the National Government, representing all the people, should have complete power to act. Certain judicial decisions have done just what Wilson feared; they have, as a matter of fact, left

vacancies, left blanks between the limits of actual National jurisdiction over the control of the great business corporations. The legislative or judicial actions and decisions of which I complain, be it remembered, do not really leave to the States power to deal with corporate wealth in business. Actual experience has shown that the States are wholly powerless to deal with this subject; and any action or decision that deprives the nation of the power to deal with it, simply results in leaving the corporations absolutely free to work without any effective supervision whatever; and such a course is fraught with untold danger to the future of our whole system of government, and, indeed, to our whole civilization." 51

The foregoing doctrine is one quite different from the established doctrine of implied powers as developed by Marshall, a doctrine which will be discussed in the next chapter. That doctrine, as it will be seen, holds that from an expressly given federal power there may be implied those powers which are necessary and proper for effectively exercising it. The doctrine thus does not justify, under any circumstances, the assumption of a new power by the Federal Government. The Wilson-Roosevelt doctrine on the other hand asserts that a given subject not originally within the sphere of federal control, may, by mere change of circumstances, be brought within the federal field. Thus, to illustrate concretely, it might be argued according to the doctrine of implied powers that as implied in authority expressly granted to Congress to regulate foreign and interstate coramerce, Congress might compel all corporations or individuals manufacturing commodities for foreign or interstate commerce to obtain a federal license, such a license to be granted upon such terms as Congress might see fit to dictate. According to the Wilson-Roosevelt doctrine, however, it could be argued that the control of manufacturing is not expressly denied the Federal Government nor expressly placed within the exclusive control of the States, and that, under existing industrial conditions it being of federal importance that these manufacturing concerns, or certain of them, should be regu

51 Speech at the dedication of the Pennsylvania capitol at Harrisburg.