Our Changing Constitution

nst the encroachments of national power. Let no one suppose, however, that this is because the Court itself has faced about. On our revolving planet a ship may be sailing towar

rs, the Court on the whole has steered a fairly straight course. What has really altered is the environment in which the Co

e business of the Court was meager and membership in its body seemed less attractive than membership in the judiciary of a state. Robert Hanson Harrison, one of President Washington's original appointees to the Supreme bench, declined to serve, preferring to accept a state judicial office. John Rutledge, another of the original ap

d a decision in favor of the private citizen. The legislature of the sovereign state concerned (Georgia) responded by a statute denouncing the penalty of death against anyone who should presume to enforce any process upon the judgment within its jurisdiction. The matter was taken up in Congress and resulted in the proposal, and subsequent ratification by the states, of a constitutional amendment designed to prevent such

Dallas, 419, de

2: Amend

Federal Government (in this case the treaty of peace with Great Britain) nullified previous state laws dealing with the subject matter. It is an interesting circumstance that one of the counsel on

Dallas, 199, de

ach between the President and the Chief Justice was widened by some of the early decisions of the latter upholding the supremacy of the National Government and the powers of the Supreme Court, notably the famous case of Marbury v. Madison,[1] in which was asserted the power of the Court to declare an act of Congress void as in conflict with the Constitution. Some years elapsed, however, before a case was decided which squarely involved a conflict between the powers of the Federal Government and the powers of a state. The issue came up

1: 1 Cra

Cranch, 115, de

rt to be void as repugnant to the Federal Constitution. The State of Georgia had sought by statute to destroy rights in lands acquired under a

1: 6 Cra

judgment of a state court on questions arising under the Federal Constitution. The State of Virginia

: 1 Wheat.,

aryland to tax the Bank of the United States, Marshall's doctrine of implied powers

: 4 Wheat.,

e of New Hampshire had sought to alter the charter of Dartmouth College, and the New Hampshire courts had upheld the legislature. The Supreme Court reversed the state co

College v. Woodward,

ously sustained by the Court of Errors of New York, restraining Gibbons from navigating the Hudson River by steamboats licensed by Congress for the coasting trade on the ground that he was thereby infringing the exclusive right, granted by the legislature of New York, to Robert R.

: 9 Wheat.,

horizon of our national life. Marshall's judgments transformed a governmental experiment into somet

dom and skill. It would be a mistake, however, to suppose that he favored federal encroachment upon the powers reserved to the states. On the contrary, he rendered

nch by appointments to vacancies. The result was at once apparent. Two cases[1] involving important constitutional questions, which had been argued during Marshall's lifetime but assigned for reargument on account of a division in the Court, were now decided contrar

New York v. Miln, 11 P

11 Peters, 257,

he scope of certain of Marshall's decisions was limited.[2] Upon the whole, however, the structure of constitutional law which Marshall had reared was not torn down or greatly impaired. The national supremacy was upheld. Taney and his associates were for the most part patriotic men and eminent lawyers, proud of the Court and its history and anxious to add to its prestige. It is regrettable that the merits of some of them have been so obscur

: 7 Howard,

River Bridge case, 11 Peters, 420, imposing salutary res

ott v. Sandford, 19

y appointments made by President Lincoln and his immediate successors and it seems to have been anticipated that the new Court would take the view of national powers prevailing in Congress and the country at large. In this the popular expectation was doomed to disappointment. The Court displayed a

as as a sovereign state were asserted, though Texas had joined in

: 7 Wall.,

held that Congress had no power to

: 11 Wall.,

Orleans and other territory, was upheld, as a valid exercise of state police power, against claims that the legislation violated rights secured under the newly adopted amendments

: 16 Wall.,

alled Federal Enforcement Act. The decision in United States v. Harris[2] declared unconstitutional portions of an act of Congress designed for the suppression of activities of the Ku-Klux variety. In the so-called Civil Rights cases[3] certain provisions of the federal Civil Ri

: 92 U.S.,

2: 106 U

e 3: 109

ates against attempted federal encroachment arising from the conditions of the Civil War. The nation owes a debt of gratit

tinued down to the present day. In the Income Tax cases[1] the Court held that a tax upon income from bonds of

Farmers Loan & Trust Co.

states, an act of Congress making it a felony to harbor alien prostitutes, the Court declaring that "speaking gen

: 213 U.S.,

Child Labor Law of 1916 unconstitutional as invading t

late the constitutional limitations upon the exercise of authority, federal and state, to the end that each

r v. Dagenhart, 24

in the Child Labor Tax Case (Bailey v. The Drexel Furniture Co.)

desire for uniformity, standardization, efficiency, has outgrown the earlier fears of a centralization of power. Congress has found ways, under the constitutional grants of power to lay taxes and regulate interstate commerce, to legislate in furtherance of the popular demands

e principles of Thomas Jefferson. Such a claim does Hamilton and Marshall an injustice. While they both stood for a strong National Government, neither

d far-reaching pronouncements in suppor

of a state not surrendered to the General Government;... inspection laws, quara

ns v. Ogden, 9 Whe

same opinio

regulate its police, its domestic t

ulating their own pu

f trading

the idea that the rights of the states are in danger of being invaded

chments by the members upon the federal hea

t it is to be hop

constitutional equilibrium between t

Federalist,

2: Id., Nu

rote is not being preserved. Some will say that this is an age of progress and we are imp