CONSTITUTIONAL CONCEPTIONS:

A CONTRAST

BY WILLIAM D. RITER

MANY writers on constitutional law, some but not all of them possessing a profound insight into the science of government, have often endeavored to explain the fundamental ideas which entered into the formation of the Federal Constitution. Upon one theme, which has engaged the earnest attention of all, there has been substantial unanimity; and that is that the line which separates the Nation from the State is established in bold relief. The line of cleavage, it is admitted by all, is not defined with meticulous care, but is derived from a consideration of the basic powers entrusted to the Nation. It is agreed that whatever powers are not expressly or impliedly granted to the Nation are reserved to the States or to the people. No other conclusion is indeed permissible, this being the very language of one1 of the first ten Amendments, all of which were proposed within a few weeks after the Government was founded. The absence of these Amendments from the original draft of the Constitution, all but two of them being in the nature of a Bill of Rights, for a time threatened its adoption, the opponents of ratification being won over by promises that at the earliest opportunity they would be formally proposed. This is forcibly shown by the introductory part of the resolution under which their submission to the States was made: The Conventions of a number of the States having at the time of their adopting the Constitution expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution-Resolved

That the following articles be proposed to the legislatures of the several States, as Amendments to the Constitution of the United States.2 1 The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

'This resolution was passed by the first Congress, which convened at New York on March 4, 1789.

Many well known statesmen of an earlier generation, revered in their day for their broad vision, but whose admonitions have unhappily had little influence upon the present age, were accustomed to assert that the whole foundation on which these respective governmental powers rested was apt to crumble if this division between the Nation and the State was not to be sedulously maintained. They repeatedly asserted that it was essential to the perpetuity of our institutions that the separation of these powers, then supposed to be wisely balanced, should be scrupulously upheld. It was openly proclaimed that the Nation, possessing such powers as were then supposed to be conferred, was abundantly endowed to attain in the fullest measure the great and enduring ends of national existence. On the other hand the evil consequences that must result if the State's power of control over domestic matters was to be withdrawn, were recognized by all.

All of this of course presupposes that in adopting the Constitution the people had well settled convictions as to the proper line of demarcation between the Nation and the State. It moreover gives emphasis to the fact that they possessed an abiding faith in their ability effectively to function within the two fields of activities thus circumscribed and drawn. To assert that the powers accorded to the one or to the other must be separately preserved if the great object of our national well being is to be attained, is but an implied avowal of the capacity of the people to reach the maximum of efficiency within the two orbits of governmental activities. No one was then prepared to advocate the doctrine that the States must receive outside guidance and assistance in matters with which they alone were concerned. The utter helplessness of the Colonies under the Articles of Confederation to achieve national strength was, however, everywhere recognized. It was this very impotency which gave rise to an insistent demand that a Federal Convention be called. authority was in strictness limited to formulating amendments to the existing Articles of Confederation. When some of its farvisioned members, convinced of the absolute futility of such a course, began preparing not amendments but an entirely new Constitution, many an acrimonious debate took place. Open

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charges of wanton usurpation of authority were not infrequently made. For a while grave fears were entertained that these fundamental differences could not be composed. But in the end hope triumphed over despair.

It is of course axiomatic that although supreme with respect to all matters committed to its charge, the Government of the United States possesses only those powers which are expressly or impliedly delegated. The States still enjoy all the powers of sovereignty which were not surrendered to the Nation. But their unwillingness to surrender to the Federal Government all of the attributes of sovereignty which they had strikingly exhibits the then prevalent notion that, within the sphere reserved to themselves, the States could more effectively promote the general welfare of all.

A comparison of the underlying conceptions prevailing at the time of the adoption of the Constitution with those of to-day presents in truth a remarkable contrast. That instrument still remains unaltered in its most essential features, but a radical change in the public mind has taken place with respect to the extent of the powers which the States and the Nation respectively enjoy. At the beginning the former looked with jealous concern on any attempt by Congress to deal with matters of local concern. To-day there is a wide-spread feeling that the States have outgrown their usefulness. And as a necessary corollary there is an alarming tendency to insist that the Constitution be interpreted in such a way as to impose no limits on Federal activities whatever.

It must not of course be overlooked that this change of sentiment is in great part possibly due to a fuller realization of how broad some of the Nation's powers really are. While it can with accuracy be said that the Constitution itself has not changed, the truth is that not even its founders had in mind how farreaching some of its language was destined to become. Who, for example, would have been able to point out at the time it came into existence the extent of the power flowing from these simple words: "The Congress shall have power regulate commerce with foreign nations, and among the several States"? Their meaning has given rise to endless controversies

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which have challenged the attention of the highest court of the land for over a hundred years. The process of interpretation, necessarily slow and laborious, has been attended, it is true, by numerous divisions among the members of the court, but always with profound reasoning and an exhibition of mutual self-respect and restraint that have done so much to inspire confidence. Upon these words alone depends the validity of a mass of Federal legislation which is being augmented every year. Comprehending as they do every species of commercial intercourse, it is now unquestioned that Congress possesses the power to regulate the railroads, the telegraphs, and the telephones; to prescribe their interstate rates; to control their intrastate rates to the extent of removing any discrimination against the former; to determine the measure of liability for injuries to their employes; to fix their hours of labor; to prescribe, at least within certain limits, their rates of pay; to govern navigation; to regulate the payment of seamen's wages; to establish harbor lines; to say what bridges shall be built across navigable streams; to prevent the transportation of improper film pictures; to punish any one for transporting a woman from one State to another for immoral purposes, even if not done for commercialized vice; and to suppress monopolies and restraints of trade.

Leaving to one side its authority to legislate with respect to the census, treason, national elections, national territory, and prohibition, all the powers vested in Congress by the Constitution over subjects of legislation are to be found in no more than eighteen cryptic sentences. When we stop to consider that two of these relate to taxes and to commerce, and that the remaining sixteen relate to borrowing money, to naturalization, copyrights, patents, bankruptcy, the coinage of money, counterfeiting, the fixing of weights and measures, the establishment of post offices, post roads and courts, offenses on the high seas, war, the army and the navy, the militia, the seat of government, and jurisdiction over forts, arsenals, etc., we begin to see how circumscribed the powers of Congress really are. And yet the official set of statutes embracing all laws, both public and private, enacted since the Government was founded, comprises over thirty-eight thousand quarto pages.

The very fact that these powers, however broad and important each one is, are so few in number, is proof enough that the people who adopted the Constitution had unbounded confidence in their ability to grapple with matters of purely State concern. With respect to matters of National concern, where all alike were more or less affected by discordant and antagonistic commercial legislation; with respect to the pitiful absence of any effective power to raise revenue under the Articles of Confederation, even to discharge the indebtedness incurred in the War of Independence; with respect to rules of commerce whereby one State was able to enforce its own policy, however injurious to the trade of another; and with respect to treaties with foreign nations who were accusing us of bad faith in carrying them out when the truth is we lacked the power to do so, there was indeed a growing conviction that complete demoralization was bound to ensue unless something was speedily done. It was apparent to all that weakness and discord must be supplanted by strength and unity.

But no State doubted its ability to manage its own affairs. Not only was that thought never entertained, but from the time the framers of the Constitution entered upon their task in May until their work was completed in September, the whole struggle was over the extent of the sovereignty which each State was willing to surrender. On more than one occasion the jealousy of the smaller States, fearful lest their control would pass into the hands of the larger, threatened the whole proceedings with failure. But not once did any member arise to assert that a Nation was needed to govern the people in the sturdy ways of local citizenship.

All this is now changed. A new generation, with new ideas, new aspirations, and new conceptions, has come into being. Any attempted interference by Congress with matters which once at least were regarded as essentially local now meets with but a listless or at best half-hearted resistance. With the people apparently resigned to the notion that their standards and ideals are incapable of realization unless imposed upon every other section, there is an increasing tendency to disregard all geographical barriers by resorting to powers that acknowledge no limit other than the Nation itself. This evolution of thought, remark