Page images
PDF
EPUB

two hundred State laws have been condemned? the answer is that there are forty-five States and only one Congress, and that the members and Committees of Congress are much more familiar Iwith the Federal Constitution than those of a State Legislature, who naturally look first to that of their own State. It is notable, too, that the legislators of some States must be much more studious of the Federal Constitution than others, for while Louisiana, which became a State in 1812, and from its French origin has retained the civil law instead of the common law, has had twenty of its laws pronounced invalid for violation of the Constitution, Massachusetts, one of the original thirteen States, has only suffered twice in this way in her whole history.

Congress is, of course, in the first instance the judge of the constitutionality of its own Acts, and its members being mostly lawyers, are familiar with the letter and spirit of the Constitution. The cardinal and wholesome rule of the Court has been, not to pronounce either a State or Federal Law invalid on constitutional grounds unless the violation is clearly established, that the presumption is in favor of the validity of a Statute, and that this continues until the contrary is plainly demonstrated.

The Supreme Court has felt that one branch of the Government cannot encroach on the domain of another without danger, and that the safety of our institutions depends in no small degree on a strict observance of this salutary rule. It speaks

volumes for the wisdom and caution of the Court which is vested with this remarkable and fascinating power, that in so great a mass of State legislation, some of it crude and undigested, consisting of thousands of volumes, it has not found it necessary to exercise the power much more frequently.

It has been a source of frequent wonder to foreign observers that a written Constitution, which was framed in the 18th century for thirteen feeble States, with three millions of people of substantially uniform wealth or poverty, scattered along the Atlantic seaboard, and for whose government it was regarded as a precarious experiment, should be found to answer as well in the 20th century for the needs of a great nation of eighty millions in forty-five States, occupying the breadth of the Continent, with gigantic accumulations of individual and corporate property, with conflicting interests and sentiments, and wide differences of social condition.

There was much debate in the discussions which resulted in the adoption of the Constitution, whether the Government which it called into being could reach and control even a people that was expected to occupy the territory which the Treaty of Peace of 1783 secured to the United States, which extended only from the Atlantic to the Mississippi River, and from the lakes to the northern boundary of Florida. Since that time. our territory has expanded to more than four times its original area, and now embraces insular

possessions of vast extent, at enormous distance from the seat of Government and half way round the globe.

The fundamental difficulties of time and space have been overcome by the triumphs of steam and electricity, wholly unforeseen and unexpected in 1787, but which now, in the case of the United States and Great Britain alike, have rendered possible the administration of Government from London or from Washington on any portion of the earth's surface. At the time of the adoption of our Constitution it took about as long to travel the length or breadth of the then United States as it does now to go from New York to Manila, or from London to Pekin, and orders of either Government which then would have taken months to transmit, now reach their destination so as to be put in execution at the other end of the world in a few hours, and sometimes in a few minutes.

But in our case, we can account for the fact that a written Constitution, instead of being torn asunder and left by the way as the Nation expanded, as new and wholly unexpected conditions arose, has grown with the growth of the Nation, like the hide of an animal from its birth to its maturity, so that it still embraces and covers the whole of our vast national life. We owe it, first, to the wisdom of its framers, who inserted in it only fundamental rules and principles, generally and briefly expressed, leaving it always to Congress to fill in and provide for all details; and

secondly, to the vigorous and masterly manner in which the Supreme Court has exercised its essential and lawful function of construction. By this it has applied the whole instrument and each of its parts to new conditions as they arose, and has developed and strongly asserted the inherent powers of sovereignty intended to be vested in the Government of the United States, and necessarily resulting from their existence as a Nation. It was our happy fortune that for thirty-four years, in that critical period of our history which was to determine whether we were to be a great and powerful Nation, adequate for all the needs of a first-class Power in the world, or only a league of States like the old Confederation, we had the benefit of the broad and robust intellect of Chief Justice Marshall, to enforce the liberal principles of construction which the genius of Hamilton had laid down.

In a single paragraph he states the whole theory upon which the Court has administered the Constitution, and fitted it to the growing wants and changing conditions of the Nation:

"The Government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise, as long as our system shall exist. The powers of the Government are limited, and its powers are not to be transcended. But the sound

construction of the Constitution must allow to the National Legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in a manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, and which are not prohibited, but are consistent with the letter and spirit of the Constitution, are constitutional."

Hamilton, in the "Federalist," declared that "the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks." Montesquieu, whose works, with Blackstone's, were the text-books of constitutional liberty which the framers had constantly in hand, declared that "the judicial power is next to nothing." And it was said by another French publicist, "It has no guards, palaces, or treasures, no arms but truth and wisdom, and no splendor but the justice and publicity of its judgments." But the Supreme Court, sustained generally by the confidence and affection of the people, has more than held its own. Keeping carefully within its own limits, it has for the most part labored to keep the other departments of Government within theirs, and the powers of the States and of the Nation from coming into conflict. In its hands

« PreviousContinue »