Our Changing Constitution

decided a few years ago

State

in 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.

ves in the position of the men who framed and adopted the Constitution, and inq

arolina v. United St

he voice whos

not be accepted so readily. An acute critic of our institutions has said that the Constitution "has changed in the spirit with which men regard it, and therefore in its own spirit."[1] Men realize that the words of the Consti

The American Commonwe

ing confederation a more effective union. The most formidable obstacle, apart from mutual jealousies, was a fear of loss of liberties, state and individual, through encroachment of the central power. The instrument, drawn with this fear uppermost, was designed to limit th

The American Commonwe

2: Tenth A

er state"[1] the Supreme Court in 1793 proceeded to entertain a suit by one Chisholm, a citizen of South Carolina, against the State of Georgia.[2] It had not been supposed that the grant of power contemplated such a suit agains

1: Art. II

2: See 2 D

: Eleventh

ent by Congress of White Slave and Child Labor laws. Obviously there has been a profound change in what the Constitution means to

s it left the hands of the framers. Witness the embarrassment toward Italy growing out of lack of federal jurisdiction in respect of the New Orleans riots, and the ever-present danger to our relations with Japan from acts of the sovereign State of California which the Federal Government is powerless to control. Among developments from within was the Civil War, with its triumph for the idea of national supremacy and an indissoluble union. Another, which has hardly received the attention it deserves, has been the influence of the large element of our population composed of

iations of federal money. Notable examples of this influence may be found in the field of river and harbor improvements, the creation of various new bureaus in the Department of Commerce, the enormous extension of the activities of the Agricultura

railways drew the different sections of the country together in a common growth, and tended to make the barriers interposed by state lines and state laws seem artificial and cumbersome. In fact, they sometimes came to be regar

he efforts of the life

Deer Lodge County

ll the interests and activities of men. Moreover, new views have arisen concerning the functions and scope of government, views challenging the laissez faire doctrines of earlier days and demand

III, XIV, and XV), all of them dealing primarily with the abolition of slavery and the civil rights of the Negro. The only one which need be noticed here is Number XIV, which substituted a federal test of citizenship for state tests and provided that no state should "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." There was nothing new in these prohibitions. In

e nevertheless to be implied as inherent in the very fact of sovereignty. This is a very different thing from the famous doctrine of implied powers developed by Chief Justice Marshall-that all powers will be implied which are suitable for carrying into effect any power expressly granted. It is a favorite theory of what may be termed the Ro

wer. It was claimed in the brief filed by the Attorney General and Solicitor General that the doctrine had already been applied by the Court in the Legal Tender cases.[2] The effort failed, however, the Cour

Kansas v. Colora

s a statement to the sa

th," Vol.

ral bankruptcy laws. Another and striking example is the so-called "Carmack Amendment" of the federal Interstate Commerce law. The question of liability for loss or damage to goods in the hands of railways and other carriers had been a fruitful field for state leg

r any subject. It follows that while the Federal Government has no power (for example) to regulate the descent of real property in the various states the treaty-making power permits it, by treaties with foreign nations, to destroy the alienage laws of the states.[1] Another v

enstein v. Lynha

he Supreme Court in Missour

s, and among the several states."[1] Under this grant of power Congress has enacted, and the courts have upheld, a great mass of social and economic legislation having to do only remotely with commerce. For example, the Sherman Act and other anti-trust legislation, ostensibly mere regulations of commerce, but actually designed for the control and suppression of trusts and monopolies; the federal Pure Food and Drugs Act, designed to prevent the adulteration or mis-branding of foods and drugs and check the abuses of the patent-medicine i

1: Art.

Egg Company v. United

ampion v. Ames,

eber v. Freed,

y Act, Hours of Service acts, Child Labor Law, White Slave Act and the like, all drawn with an eye to

he dairy interests-the manufacture of oleomargarine artificially colored to look like butter.[1] Also to invade the police power of the States in respect of the regulation of the sale and use of narcotic drugs.[2] Also to check speculation and extortion

ay v. United Stat

rug Act. Held constitut

6; Webb v. United St

ct of 1921, Title VIII

. Kansas City Title

declaration by the Supreme Court with which we began, that "to determine the extent of the grants of power we must place ourselves in the position of the men who framed and adopted the Constitution, and inquire what they must have understood to be the meaning and scope of these grants." The answer must be that the Court itself has not always adhered strictly to

h power in motion, abused its lawful authority by levying a tax which was unwise or oppressive, or the result of the enforcement of which might be to indirectly affect subjects not wi

ay v. United Stat

bare majority of 5 to 4. The Child Labor Law of 1916 was declared unconstitutional[2] and the Narcotic Drug Act was sustained[3] by a similar vote, 5 to 4. In the Narcotic Drug case the four dissenting justices, speaking through Chief Justice White, characterized portions of th

its great expounder. Our form of government may remain notwithstanding legislation or decision, but, as lon

ampion v. Ames,

mer v. Dagenhart

ed States v. Dore

tution has changed. In a way change is inevitable to adapt it to the conditions of the new age. There is danger, however, that in the process of change something may

ny of the majority acting through a centralized power. The words "state sovereignty" acquired an odious significance in the days of our civil struggle, but t

ational power and authority, Salmon P. Chase, speaking as Chief Justic

care of the Constitution as the preservation of the Union and the maintenance of the National Government.

exas v. White,