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The same thought found expression in the opinion of the court in these words:

But where the law is not prohibited and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department, and to tread on legislative ground.'

Shortly afterwards the great Chief Justice said: The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied to secure them from its abuse. They are the restraints on which the people must often rely solely in all representative governments.?

There is therefore no longer any question as to the unlimited power of Congress over interstate commerce, and whether the power is applicable to any given subject-transportation, the telegraph, insurance, or other interstate enterprises—is for Congress to say and not for the court.

In one of the opinions of that case it was declared:

The language which grants the power as to one description of commerce grants it as to all.3

In speaking of the power of Congress over navigation, Justice Johnson said he did not regard it as a power incidental to that of regulating commerce, but he said:

I consider it as the thing itself; inseparable from it as vital motion is from vital existence. Commerce

Said he in its simplest signification means an exchange of goods; but in the advancement of society, labor, transportation, intelligence, care, and various mediums of exchange become commodities, and enter into commerce; the subject, the vehicle, the agent, and their various operations become the objects of commercial regulations. Shipbuilding, the carrying trade, and protection of seamen are such vital agents of commercial prosperity that the nation which could not legislate over these subjects wonld not possess power to regulate commerce

Mr. Justice Field also said, in a later case, that an article of commerce is determinable by the usages of the commercial world."

Chief Justice Waite said of the powers granted by the commerce clause:

The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country and adapt themselves to the new developments of time and circumstances.

Mr. Justice Miller said that the power of regulation under the commerce clause has been applied “to a method of intercourse which had no existence when the Constitution was framed.”'6

Mr. Justice Brewer more recently said:

Constitutional provisions do not change, but their operation extends to new matters as the modes of business and habits of life of the people vary with each succeeding generation. The law of the common carrier is the same to-day as when transportation on land was by coach and wagon, and on water by canal boat and sailing vessel, yet in its actual operation it touches and regulates transportation by modes then unknown, the railroad train and the steamship. Just so it is with the grant to the national government of power over interstate commerce. The Constitution has not changed. The power is the same. But it operates to-day upon modes of interstate commerce unknown to the fathers, and it will operate with equal force upon any new modes of such commerce which the future may develop.

14 Wheat, 423.
* Gibbons v. Ogden, 22 U.S., 1, 197.
* Gibbons v. Ogden, supra.
* Bowman o. Railway, 125 U.S., 465.

Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S., 1, 9. . Miller on the Constitution, 450.

And the late Chief Justice Fuller said:

We can not hold that any articles which Congress recognizes as subjects of interstate commerce are not such.?

I cite two illustrations of the exercise by Congress of this power in response to suggestions from the court. The first involved a sharp disagreement between Congress and the court, and the second quickly produced the long-delayed Federal regulation of interstate carriers.

In the Wheeling Bridge case 3 the court held the bridge a nuisance because it was constructed in such a manner as to impede navigation; but Congress afterwards passed an act declaring it to bo a post road and a lawful structure, and required boats navigating the Ohio River to lower their smoke stacks so as not to interfere with it, and thereby nullified the prior decision.

Prior to the decision of the Supreme Court in Wabash, St. Louis & Pacific Railroad Co. v. Illinois, decided October 25, 1886, the court in the Granger cases had apparently held that it was competent for the State of Illinois to impose certain taxes which constituted a burden


interstate commerce. Congress had then never legislated upon this subject. The Interstate Commerce Commission, by which the control of Congress was asserted over interstate carriers, was created by an act of Congress passed in 1887. But the majority opinion of the Supreme Court in the Wabash Railroad case, written by Mr. Justice Miller, concluded with these words:

Of the justice or propriety of the principle which lies at the foundation of the Illinois statute it is not the province of this court to speak. As restricted to a transportation which begins and ends within the limits of the State it may be very just and equitable, and it certainly is the province of the State legislature to determine that question. But when it is attempted to apply to transportation through an entire series of States a principle of this kind, and each one of the States shall attempt to establish its own rates of transportation, its own methods to prevent discrimination in rates, or to permit it, the deleterious influence upon the freedom of commerce among the States and upon the transit of goods through those States can not be overestimated. That this species of regulation is one which must be, if established at all, of a general and national character and can not be safely and wisely remitted to local rules and local regulations, we think is clear from what has already been said. And if it be a regulation of commerce, as we think we have demonstrated it is, and as the Illinois court concedes it to be, it must be of that national character, and the regulation can only appropriately exist by general rules and principles, which demand that it should be done by the Congress of the United States under the commerce clause of the Constitution.5

The State rights doctrine seems here and there to find advocacy, but it is not a real, live issue; it is only a ghost. Nevertheless, those who are talking about it talk about it as though it was something new. I quote again from James Wilson what he said on this point:

A citizen of America is a citizen of the General Government and citizen of the particular State in which he may reside. The General Government is meant for them

1 In re Debs, 158 U. S., 591.
? Leisy v. Hardin, 135 U.S., 100, 125.
313 How., 519.
• Van Santvoord: Lives and Services of the Chief Justices, 529.

6 118 U.S., 557.
#3 U.S., Compiled Statutes, 1901,

p. 3153.



in the first capacity; the State government in the second. * The General Government is not an assemblage of States, but of individuals for certain political purposes. It is not meant for the States, but for the individuals composing them. The individuals therefore, not the States, ought to be represented in it."

The Constitution was passed upon three compromises: The first, already referred to, was the concession of equal representation of the States in the Senate and the establishment of a national system of representation in the lower House. The second, which gave disproportionate weight to the slave States, gained their support. The third, the postponement for 20 years of the abolition of the foreign slave trade, secured absolute free trade between the States, with the surrender of all control over commerce into the hands of the Federal Government."

This concession of absolute power to Congress over commerce so disgusted and enraged Randolph and Mason that they refused to sign the Constitution, and Mason remained its violent opponent.'

A letter drafted by the convention to accompany the Constitution contained this statement:

It is obviously impracticable, in the Federal Government of these States to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all, Individuals entering into society must give up a share of liberty to preserve the rest.“

It is too late, in view of the fact that this question involves the original controversy between the States and a central government and the surrender of the power of the State to the Federal Government in the interest of the common weal, to urge it now; and regardless of the impassioned declarations of those who would enlarge the power of the States and minimize that of the Federal Government and thereby disqualify it; the central government is supreme, and will continue to be so, for so it must be.

As individuals we may be proud of the growth, prosperity, development, and culture of the Commonwealths in which we live; but that patriotic sentiment which, when called into action, is the strongest emotion exhibited by freemen, rests upon the fact that we are citizens of the United States and not of Virginia, California, or Nebraska.

It was Madison who said: The public good, the real welfare of the great body of the people, is the supreme object to be pursued; no form of government whatever has any other value than as it may be fitted for the attainment of this object. Were the plan of the convention adverse to the public happiness, my voice would be, reject the plan. Were the Union itself inconsistent with the public happiness, it would be, abolish the Union. In like manner, as far as the sovereignty of the States can not be reconciled to the happiness of the people, the voice of every good citizen must be, let the former be sacrificed to the latter.5

Wilson, in the early days of the convention, made this statement: On examination it would be found that the opposition to Federal measures had proceeded much more from the officers of the States than from the people at large.8

Later he said: He did not see the danger of the States being devoured by the National Government. On the contrary he wished to keep them from devouring the National Government.?

i Kasson, 82. : Fiske: The Critical Period of American History, 317. * Ibid., 314, 403. • Kasson, 197. 6 The Federalist, No. 45. • Vol. III, Documentary History of the Constitution, 28. ' Ibid., 84.

Again he said: He conceived that, in spite of every precaution, the General Government would be in perpetual danger of encroachments from the State governments.'

In this Madison agreed, and expressed the opinion that there was (1) less danger of encroachment from the General Government than from the State governments. (2) That the mischief from encroachments would be less fatal if made by the former than if made by the latter." 1

I deny the soundness of criticisms leveled against our Constitution upon the ground that it commits too much power to the Central Government and takes from the States powers which they ought to exercise, for in our national experience the attempted regulation by the States in many, if not all, of the matters that concern the people as a whole, has not worked to the satisfaction of the people, and what the National Government has undertaken, has worked.

It is as true to-day as it was a century ago, that the demand for more power on the part of the States is by the governors and attorneys general of the States, and other State officers who seek to magnify their own offices, and not by the people of the States, few of whom would know that they had been deprived of any rights, either actual or imaginary, unless they were told about it.

Possibly the severest indictment against the American judiciary is the claim that it has exceeded its powers in those decisions where acts of the legislature have been annulled upon the ground that they were unconstitutional, and the charge is made that the judiciary has thereby invaded the legislative department of the Government.

I shall not discuss either the recall of judges or the recall of judicial decisions. (I take the liberty, however, of saying parenthetically, that I do not believe in either of them.) There is no excuse for judicial legislation, but it does not by any means follow that because an act, whether of Congress or of a State legislature, is declared contrary to the paramount law, that the court so holding has committed the offense of legislating.

Senator Sutherland, in a scholarly address before the American Bar Association, referred to the fact that the framers of the Constitution were deeply learned in the science and history of government, and that they knew and sought to avoid the weaknesses and dangers to be guarded against if government by the people should endure; and because they knew that a pure democracy "was a beautiful but a barren and deceptive ideality which had never survived and in the nature of things could never survive the test of practical experience,” they sought to establish the foundation of government for the United States of America upon a firmer basis. I quote the Senator's words:

By the Constitution they, therefore, established a representative Republic—a selflimited democracy as distinguished from an unlimited democracy. They provided for the three separate and distinct departments, conferring upon each its appropriate powers, and thereby denying to each any authority to invade the domain of the others. So delicate and yet so strong was the adjustment that the plan has operated with justice and efficiency for more than a century of unchallenged time.

It would be indeed surprising if during the 125 years of the history of jurisprudence in the United States the State supreme courts, num

I Vol. III, Documentary History of the Constitution, 179.
*At Milwaukee August 1912: Title, “The courts and the Constitution."

bering originally 13 and now increased to 48, had never overstepped the boundary between the judicial and the legislative departments of Government; but the voters of the several States have a ready and speedy remedy against any such assumption of power, and the statement of the present Chief Justice of the Supreme Court of the United States, who, in my opinion, is the greatest jurist of our time, is a conclusive answer to those who, in ignorance of the facts, charge that the national judiciary has encroached upon the powers committed to the other departments of our Government. He said in McCrary's case:

No instance is afforded from the foundation of the Government where an act, which was within a power conferred, was declared to be repugnant to the Constitution, because it appeared to the judicial mind that the particular exertion of constitutional power was either unwise or unjust.'

But the Constitution says "the judicial power shall extend to all cases in law or equity arising under this Constitution.".

And the obligation to enforce the Constitution as “the supreme law of the land” is laid on the judiciary in the following terms:

This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby; anything in the constitution or laws of any State to the contrary, notwithstanding.

It must be remembered that even the Declaration of Independence in which the signers referred to the colonies as “The United States of America,” contained no specification of the powers which the Union, as distinct from the States, should exercise.

And the Articles of the Confederation made no provision for supervising or annulling such legislative acts as might be passed in violation of it; hence the controversy between the States and factions, already recited.

The Constitution, which separated the powers of government into the three departments--executive, legislative, and judicial—also conferred three points of previous dispute, viz, taxation, the regulation of interstate and foreign commerce, and the right to acquire or govern colonies, upon the Union; and provided how and by whom legislative acts not within the powers of either the Federal Government or the States might be reviewed or annulled; and although the employment of this extraordinary power involves the possible reversal of the will of a popular majority as crystallized in legislation, its exercise was nevertheless intended to and does register the supreme will of the people according to principles they declared by agreeing to our social and governmental compact, as those principles are stated in the Federal Constitution; but the use of this power does not give the nine men who compose the Supreme Court of the United States any right or privilege to impose their individual opinions upon the people, nor any other power or authority than to state the law, as it is, and thereby give effect to the will of the people.

Dr. Pound, discussing the changes going on in the substantivo law, and the difficulties confronting the courts in a period of transition,' speaks of the difference in the rate of progress between law and

1 McCrary v. United States, 195 U. 8., 27, 54. : Annals of the American Academy, September, 1912, p. 296. : His address, “Social justice and legal justice.'

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