furtherance of political ambition. When she does so, her industrial ideals will be so similar to our own that the two peoples will be able to join hands in promoting peace and prosperity.

Of the other continental countries it is not necessary to say much. Our conflicts of trade interests with Italy and Austria-Hungary should not be difficult of adjustment, so far as we can foresee; and neither country is in a position to have colonial ambitions whose defeat will be serious for itself. France has become so much of an appendage to Russia that her foreign policy is largely controlled by that of her ally. Our commercial interests do not clash seriously with hers, and her colonies lie in quarters in which we have little territorial interest. As for Russia, our relations with that Power are truly remarkable. The two countries stand for antagonistic ideals, both political and social. Doubtless, we have been able to remain on good terms with her for so long, because our interests and hers have not heretofore come into conflict. Russia plays us off against England, as she plays off France against Germany. Her recent behavior in Manchuria shows that, if occasion offers, she will treat us with the same duplicity that has long marked her conduct toward other nations. Our differences with Russia will not, of course, be over her territorial expansion as such. That lies out of the sphere of our interests. They will arise in connection with our trade interests in her new territory. The Russian policy is one of exclusiveness and state regulation of industry, while ours is for the "open door" and individual initiative. No union of these policies is possible.

In spite of a good deal of ignorance concerning us and our ways, and in spite, also, of their disagreeable patronizing fashion of treating us, the English really understand us better, and feel more friendly toward us, than do any other people. True, they have been a good while in learning to treat us properly, and we have a good deal to forget of arrogance and illwill in the past. Still, the feeling of the people of Great Britain toward us could not be more friendly and less patronizing than it is now. They are our commercial rivals, to be sure; but, speaking generally, they have no thought of meeting our competition except by fair means, and in the spirit that the better may win. To keep on good terms with the United States under all circumstances has become a settled principle of British foreign policy. Both the Government and the people of Great Britain are ready to do anything in reason to get and keep our cordial good-will. If we will meet them in a friendly spirit, no differences that can arise will disturb the mutual good-will of the two countries. English industrial, social, and political ideals are akin to our own, and a good work

ing understanding between us and Great Britain would do more for the world than a union of forces between any other two countries. If Germany would forget her prejudices and lay aside her impracticable political ambition, in order to join in such an understanding, the peaceful progress of the world would be assured for a long time to come. We should meet the English desire for a better understanding, and leave the way open for Germany to join in forming a triple alliance of the forces of peace and progress, as soon as the people of that country could get over their foolish and unfounded ill-feeling toward things English and American.

15

DAVID KINLEY.

THE DECADENCE OF OUR CONSTITUTION.

FOR more than a century the people of the United States have supposed themselves to be living under a rigidly written Constitution, which cannot be amended or modified except by the method set forth in the instrument itself. Half a century of political existence shows great modifications by the construction and interpretation of the United States Supreme Court. In view of many Supreme Court decisions, especially that of the late insular cases, the doctrine which is actually carried into effect seems to be that the prevailing public sentiment or the pronounced party policy of the Administration in power is invariably to be sustained, irrespective of the written Constitution; or, in other words, the Constitution can be changed by judicial construction a doctrine which contravenes that announced by Chief Justice Marshall.

In Europe a constitution may be in great part unwritten, as is the case with that of Great Britain; or, as in many Continental states, it may be embraced in the municipal law. The great features of the British constitution, however, are written, such as the Magna Charta, the Petition of Rights, the Habeas Corpus Act of 1769, the Bill of Rights, and the Act of Settlement.

The United States, according to the common conception, is a Government in which the powers of sovereignty are defined and limited in accordance with the principles of a fundamental law called a written Constitution. In 1803 Chief Justice Marshall, in Marburg against Madison, declared that the Constitution was supreme, and that any act of Congress not in accord with it was void. In England Parliament is supreme, and its enactments, whether constitutional or not, are valid; hence, the British constitution is a constitution by fiction only. Under Chief Justice Marshall's decisions our Constitution was a verity. During his time the attitude of the Supreme Court was one of absolute independence as a coördinate department of the Government, and fundamental principles of constitutional law were formulated in opposition sometimes to the Administration and often to public sentiment. Since Marshall's time the Constitution has seemed to be losing its paramountcy,

because it has been amended by decisions of the Supreme Court which have often overruled former judgments. Judgments have been rendered by a divided court, sometimes by a majority of one, the concurring justices in the majority opinion holding irreconcilable opinions, but uniting in the result.

The new fashion was set by the Dred Scott decision, in 1856, when a pronounced party policy was sustained. In the same way the Legal Tender cases, in 1869-70, showed the subserviency of the Supreme Court to administrative necessity. It was held, overruling a former decision of the same case by the court, that the power to make the notes of the Government legal tender in payment of private debts was one of the inherent rights of sovereignty in all civilized nations, and that, as the Constitution did not expressly withhold it from Congress, Congress had the power so to legislate for the United States. That is, the jus gentium, the law of nations, recognizes such authority, and so the United States may adopt the doctrine. But we have been taught that Congress can exercise no power by virtue of any supposed inherent sovereignty in the general Government; because sovereignty resides with the people, and Congress can exercise such powers as have been given to it by the people, and no others.

The history of the Legal Tender cases is interesting. In 1866 an act was passed that no vacancy should be filled in the Supreme Court until the number of justices fell to seven. This act of Congress was to prevent the President from appointing new justices. In 1869 the number was eight, and was fixed at nine by Congress. One justice resigned, thus making two vacancies, which were filled; and then the court overruled the decision in the first Legal Tender case, thereby making United States notes legal tender.

In 1876 the judgments in the Granger and the Munn cases held that persons and corporations engaged in public trades can be placed under restrictive legislation without being remunerated by compensation—a position as to vested rights which differs from that taken by Chief Justice Marshall. These cases reveal that current of opinion which runs against what are called monopolies and the powers of incorporated companies. The decisions would have conformed to the result of a plebiscite if one had been taken, and show the tendency of the Supreme Court to follow public opinion.

The Income Tax case of 1895 is another striking example of the persuasive power of public sentiment on the court. The Income Tax Law was first upheld as constitutional by a majority of one. Upon a

rehearing one of the majority changed to the other side, thereby causing the former opinion to be overruled. To use a modern socialistic word, the proletarians, to this day, do not understand why a graded income tax is unconstitutional. The same can be said as to many constitutional lawyers. But it would appear that the exigencies of a pronounced party policy and administrative necessity demanded a reversal of the former decision, notwithstanding that another decision of long standing had to be overruled where certain words of the Constitution had been construed. The most striking illustration of the way in which the courts bend to administrative policy and public sentiment is seen in the insular cases the De Lima case and the Downes case. The minority in the

Downes case assert that the majority opinion conflicts with that of the De Lima case. At any rate, the conclusion forces itself that the United States may enter upon a colonial policy. In 1856 Chief Justice Taney said, in the Dred Scott case, that there was no power given by the Constitution for the establishment and maintenance of colonies by the United States; that a power in the general Government to obtain and hold colonies and dependent territories for which it might legislate without any restriction would be inconsistent with its own existence in its present form; that the people of the United States never gave the general Government power to organize and maintain colonies; and that to do so would be unconstitutional and inconsistent with our republican form of government.

The insular cases swept this doctrine aside as an obiter dictum, or an anachronism. In these cases the Supreme Court has affirmed the doctrine for which Lord North contended during the Revolution which separated the Thirteen Colonies from the British Empire. Lord North's doctrine was that Parliament had plenary power to govern the colonies. The Supreme Court has now affirmed the possession by Congress of the same unlimited power over the dependencies of the United States. Lord North contended that though the American colonies were not represented in Parliament, they might nevertheless be taxed, and duties might be imposed upon their commerce. In the insular cases the Supreme Court has decided that the people of the "Crown Colony of Porto Rico may be compelled to pay such import and export duties as Congress may see proper. This was Lord North's view in 1764, when the question of taxing the American Colonies was being discussed. Accordingly, the doctrine of Lord North was wrong in the eighteenth century, as the Revolution demonstrated, but it is right in the beginning of the twentieth century, as the Supreme Court has so decided.