CHAPTER V

THE NEW CONSTITUTION AND LAWS

"A CONSTITUTION," said Walter Bagehot, "is a collection of political means for political ends, and if you admit that any part of a Constitution does no business, or that a simpler machine would do equally well what it does, you admit that this part of the Constitution, however dignified or awful it may be, is nevertheless in truth useless." 1

In 1901 Mr. Justice Brown drew the attention of his American compatriots to "the manifest danger to the future of the country which lurks in the inflexibility of the Federal Constitution." 2

For the people of America have for nearly a century agreed to consider themselves ruled by an inflexible Constitution, not to be amended or modified except by the method set forth in the instrument itself.

1 "The English Constitution," p. 4.

2 In a remarkable letter of Hamilton's, dated February, 1802, he despairs of the Constitution, which, however, he was "still labouring to prop," but which was "a frail and worthless fabric. Yet Hamilton was the first to seize on the convenient doctrine of the implied power of the Constitution. The growth of nationality, and the conversion of the agreement of thirteen States into the character of a nation, have been largely the development of the implied powers. This, remarks Senator Lodge, is the central point of Hamilton's whole policy, and in his bold declaration of the implied powers of the Constitution he laid bare his one predominant purpose of building up a powerful national government.

This is, of course, a delusion: the unwritten and flexible American Constitution promises in time to be the greater power of the two; the other destined, perhaps, to bear a similar relation to the whole as the unwritten portions of the British Constitution, such as Magna Charta, the Petition of Rights, the Habeas Corpus Act, the Bill of Rights, and the Act of Settlement.

America is, par excellence, a judge-governed country, because in no other on earth is the power of the courts. of justice comparable to that wielded here. The common phrase "a judicial ruling" has in America, as we shall see, a very literal signification. An executive edict or a legislative act appears to be powerless for good or evil if the court of last resort, after due argument and consideration, shall pronounce it contrary to the fundamental law contained in the Constitution.

All depends, therefore, on the interpretation of the Supreme Court.

Chief Justice Marshall, in 1803, declared that the written Constitution was supreme, and that any Act of Congress not in accord with it was void.' But since Marshall's time the written Constitution has been steadily losing force. It has been repeatedly amended by decisions of the Supreme Court which have often overruled previous judgments. This was inevitable; the garments made for the Republic of 1789 were beginning to be outgrown. How much less would they have fitted the nation of 1903? Certain State Governments have lately complained that their legislation had not a free hand by

1 During Marshall's time the attitude of the Supreme Court was one of absolute independence as a co-ordinate department; the government and fundamental principle of constitutional law were formulated in opposition often to the administration and often to public sentiment.-Pingrey.

reason of the intervention and "greed of jurisdiction" of the Federal Supreme Court.

The famous Dred Scott decision in 1856 marked the change, so that the doctrine actually carried into effect approximates the prevailing public sentiment or the pronounced party policy of the current administration. In brief, the Constitution can be changed not necessarily by amendment, but by "judicial construction."

One of the most interesting examples is the decision in the legal tender cases of 1869-70, showing clearly how subservient to administrative necessity the American Supreme Court may be. A previous interpretation of the Constitution was reversed, and it was held that the power to make the notes of the National Government legal tender in discharge 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, that body had the power so to legislate for the United States. In other words, the jus gentium, or law of nations, recognizes such authority, and therefore America ought to follow suit, notwithstanding her peculiar federal structure. But this certainly clashes with the doctrine that Congress can exercise no power by virtue of any supposed inherent sovereignty in the general government, inasmuch as sovereignty resides in the people, and Congress can exercise only such powers

1 A sound constitutional lawyer has recently shown clearly that Congress has under the Constitution the power which was not previously believed to make all attempts upon the life of the President or other high officials punishable by death. This was supposed to require a special constitutional amendment. It has also the power to prevent the importation into America of persons known to hold anarchistic sentiments, whose presence would be dangerous to national peace and security. More "judicial construction "!

as have been given to it by the people. This decision thus marks an interesting stage in American national evolution and emancipation from the original Constitution.

Again, in 1876, the decisions in the Granger and Munn cases held that persons and corporations engaged in public trades may be placed under restrictive legislation without remuneration—a finding as to vested rights antagonistic to the interpretation of Chief Justice Marshall, but in accordance with the public opinion of the later day, which is against monopolies and the powers of corporations.

Another striking instance of the persuasive power of public opinion on the interpretations rendered by the Supreme Court is afforded by the income-tax case of 1895. The law imposing a graded income-tax was at first upheld as constitutional by a majority of one; but on a second hearing the majority changed to the other side, causing the former opinion to be overruled.

Forty odd years ago the Chief Justice decided that there was no power vested in the National Government under the Constitution for the establishment and maintenance of colonies; 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 a people of the United States would give 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." 1

1 Yet, on the other hand, Professor J. B. Macmaster has recently written a review of the history of suffrage in the territories seeking to show that foreign soil acquired by Congress is the property of and not part of the United States; that the territories formed from it are without, and not under

But times have changed-public opinion in America has changed-and in 1901 a new interpretation was grafted upon the old Constitution. The doctrine of 1856 was swept aside as anachronistic, and the decision of the Supreme Court, in the De Lima and the Downes case, authorized America to enter upon a colonial policy.

Contrast public opinion now with public opinion in the same direction in 1764, and we see how America has evolved. Here we find the American Supreme Court affirming the very doctrine Lord North insisted upon at the time the thirteen American Colonies were talking of separating from Britain, viz. that Parliament possessed plenary power to govern the Colonies, that, even though unrepresented in Parliament, they might be taxed and duties levied upon their commerce. Congress is now affirmed to be in the position of the same unlimited power over the Dependencies of America, and what we call the American Colony of Porto Rico is compelled to pay such import and export duties as Congress may be pleased to levy.

66 was

"Lord North," says Professor Macmaster, wrong in the eighteenth century as the American Revolution demonstrated, but his doctrine is right in the beginning of the twentieth century, as the Supreme Court has decided."

America, we see, then, is really little inconvenienced the Constitution; and that, in providing them with government, Congress is at liberty to establish just such kind as it pleases, with little or no regard for the principles of self-government; that in the past it has set up whatever sort was in the opinion best suited to meet the needs of the people, never stopping to ask how far the Government so created derived its just powers from the consent of the Government; and that it is under no obligation to grant even a restricted suffrage to the inhabitants of any new soil we may acquire, unless they are fit to use it properly.