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fidelity to the Constitution in legislation as there once was and as is essential to the successful working of its plan? Is not the practice prevalent and growing among legislators, Federal and State, to put aside questions of constitutionality, and relegate them to the courts to be passed upon in the first instance? Can it be said that every act passed is certified as valid under the Constitution in the opinion of a majority of each House ? Plenty of debate upon constitutional questions is to be found in the Congressional Record. But how often nowadays is a vote cast against a bill solely because it is believed to be unconstitutional ? Here we get outside of the record in a field where to give specific proofs is not easy and might be offensive. Little more can be done than to put the questions.
Only the other day I happened to overhear this remark: “I doubt the constitutionality of that bill; but I have promised to vote for it.” And, doubtless, almost any Congressman or legislator might have so spoken, and without consciousness that he was confessing anything seriously open to criticism. In answer to any critic he might say: “ What are the courts for ? It is their business to pass on such questions. That is the beauty of our American system. Why should I trouble myself to solve them?” An illustration of this habit of mind is found in a speech of a member of the House relating not to the constitutionality of a bill but to its meaning. He naively said: “ Gentlemen say they do not know how the courts will construe the act. It is for us to enact the law and for the courts to construe and enforce it.” And this suggests one probable cause of the change of practice. It is apparently due, in part, to an excessive appreciation of the functions of the courts.
We are apt to run to extremes. Realization that the courts protect and enforce the Constitution leads to the careless conclusion that they may as well be allowed to monopolize that business. We need to recognize the limitations of constitutional law, to see that the functions of Congressmen cannot be relegated to the Courts. The duty of fidelity to the Constitution, which is imposed upon every Congressman and upon all State legislators, must be faithfully discharged; the Courts can furnish no substitute therefor.
In this connection the difference in general character between the constitutional questions now most frequently arising and those which were presented in the earlier history of the nation, should not be overlooked. In 1889, Mr. E. J. Phelps, speaking of the work of the Supreme Court, said: “ The time will never come when questions of conflicting authority between the States and the Nation will cease to arise. But that field must gradually grow smaller and its inquiries less critical. . . . . . But new attacks
But new attacks upon individual rights, in many forms and under many pretexts, are beginning to be heard of and are to be looked for in an increasing measure. The accursed warfare of classes is the danger that appears chiefly to threaten the future. It requires little prescience to perceive that the burden of constitutional administration by the court is to shift in a considerable degree from the preservation of the machinery of the government to the enforcement of its ultimate object; from conflicts between the States and the Federation to those between the State and the citizen, involving the protection of property, of contracts, of personal rights.” It needs but a glance at the legislation now proposed in Congress and in State legislatures to confirm this view. Attacks upon personal liberty and the sanctity of vested rights are the order of the day. And these attacks are made to appear as being in the interest of the masses. Fidelity to the Constitution requires more courage, when the question seems to relate to the individual rights of the few as against the demands of the many, than when it concerns the relative powers of Nation and State. The temptation to relegate the question to the courts as regards constitutionality, is stronger in the former than in the latter case. A fuller sense of duty on the part of our legislators is now all the more needed on this account.
And there is a wider field in which moral force must operate to secure the full benefits of the Constitution; that is, among the people. The representatives can hardly be expected to be faithful, unless fidelity is demanded by those whom they represent. The Constitution, which came from the people, must have their continued support or lose its power. “It is the bulwark of the people against their own unadvised action, their own uninstructed will." It can
restrain temporary aberrations of popular sentiment. But its power must fail if the popular will becomes estranged from it. “The main reason," says Dicey, “ why the United States have carried out the federal system with unequalled success is, that the people of the Union are more thoroughly imbued with constitutional ideas than any other existing Nation." That the will of the people may continue to support the Constitution and demand fidelity to it, the minds of the people must be continually educated as to its character, its purposes, and the meaning of its provisions and as to the benefits it secures to the community and to the citizens individually.
Appreciation of the functions of the courts as guardians of the Constitution goes too far, if it creates the impression that the courts are all-sufficient to secure its benefits. too, appreciation of the Constitution goes too far, if it leads to the belief that that instrument covers all that is needed for free government and the protection of individual rights. Constitutional law is limited within the domain of the Constitution. Equally true is it that the Constitution is limited within the field of civil liberty. To regard the Constitution as the be-all and end-all of free government in this country, is scarcely less of a mistake than to decry it. Dr. Lieber, speaking of constitutions generally, says: “But they remain means and we must beware of what has been called ... idolatry of the constitution; for it is the living nation, the lise of society, which is the object of the state and therefore the constitution likewise." There are times when constitutionalism seems to crowd out political wisdom ; when it seems to be assumed, in discussions of proposed measures, that what the Constitution permits cannot violate the rules of political expediency or the principles of civil liberty. The error of this assumption needs to be continually emphasized.
Constitutional law has a limited field; the Constitution, itself has a limited purpose. Eternal vigilance is still the price of liberty. Public opinion needs the guidance of such popular education as will keep alive among us an intelligent appreciation of what civil liberty is and what its safeguards are, and an active determination to have it. The capacity of the people for such education was amply shown in the campaign of 1896.
THOMAS THACHER. New York,
STREET RAILWAYS AND THEIR RELATION TO
the United States, private enterprise has furnished an exceptionally good service both as regards frequency and speed of trains, and also as regards the furnishing of railway facilities in the remoter and less densely populated
With one or two unimportant exceptions, the state has not undertaken the ownership or operation of the lines, which are the absolute property of the various companies.
Of recent years, however, there has come into existence another class of railroad property, which has brought with it questions of its own as to its wise administration, its proper ownership, and its relation to the public. Steam afforded us the possibility of trunk lines of railroad, with the tremendous advantages of quick and sure transit between cities, states and nations. Electricity has opened another field of utility and pleasure, bringing with it changes no less startling than those of sixty years ago when the steam locomotive began to revolutionize the business of land transportation. The steam railroad brought with it questions which the experience of generations of stage coaches could not answer. The electric railway carries to our very door problems which a half century of steam power cannot solve, and which must be worked out by the generation of to-day. It almost combines the mobility of the stage coach and the speed of the locomotive; but the experience of neither can fully answer the questions arising from the use of mechani. cal traction in our city streets.
In the United States a most free and easy policy of private ownership has been allowed ; in Canada the system may be described as semi-public; while in England semi-public ownership has in large part been the rule, with a marked tendency in recent years toward full public ownership and operation.
Nine years ago there were practically no electric railways
in operation. In 1890 the roads using electricity had a track mileage of 1,261 miles. Now there are nine hundred and forty-six companies in the United States and Canada operating 14,932 miles of track, of which 12,583 miles are electrically equipped. Ten years ago our people scarcely thought of such a thing as “the street railway problem." The “municipal problem,” as to how good government for cities could best be secured, was often discussed. This embraced considerations as to the ownership of water and gas works, but scarcely ever touched upon street railways. The old horse car lines possessed somewhat valuable franchises, many of them indeterminate in duration and freely given to the companies by legislatures or by municipal councils. These car systems were few in number, and were of comparatively small profit to the owners and of little use to the citizens. The street cars were then but an incident in the life of the city. Now they are a controlling factor in the growth and development of nearly all our large towns.
The introduction of electricity as a motive power is responsible for the changed position of the street railways as an element of city life.
Whereas formerly the franchise of many a railway was only valuable enough to permit the earning of a fair return upon the cost of the road ; now the franchise is a thing of recognized value and often figures as the basis of security for the bond issues of the company.
* Jan. 1, 1888, thirteen roads in U. S. and Canada with a total of 48 miles of track. ? Passengers Carried.
Miles of Track.
16.6 Springfield.. 2,135,016 8,390,326