By Frank Johnson Goodnow, October 26, 1912
WHEN the constitution of the United States was adopted at the end of the eighteenth century, the conditions to which it was intended to apply were marked by three distinguishing characteristics. The first was geographical in its nature; the second was economic; the third intellectual. In the first place, the United States for which the constitution was framed, consisted of a series of communities, lying along the Atlantic seaboard of North America, largely engaged in agricultural pursuits and occupying sparsely populated districts which as compared with their population were richly endowed with natural resources. These communities were in the main connected one with another only by the sea and by the rivers and estuaries which in many instances penetrated far into the interior. Their social conditions were as diverse as their geographical condition was isolated. In some slave labor, in others free labor was the rule. In some one racial element or one religious confession was most pronounced; in others another. Their comparative geographical isolation and their difference in economic and social conditions naturally had the effect of causing the states, as these communities had come to be called, to regard the maintenance of a large degree of local independence as of the greatest importance.
In the second place, the economic conditions of the time were comparatively simple. Even the countries of Western Europe which were most advanced from an industrial point of view were only just beginning to make use of the factory system in their industrial organization. The hand tool had not as yet generally given place to steam-driven machinery. The industrial worker in most instances still followed his livelihood within the narrow confines of his own dwelling and regulated the hours of his labor by his desires or necessities. The steam locomotive was just about taking shape in the imaginative minds of such men as George Stephenson. The only means of telegraphing was to be found in the beacon, the heliograph and the semaphore. No human being had even dreamed of the telephone. Such slight change in European industrial conditions as was due to power machinery and the building of factories had not taken place in North America, which as has been said was predominantly agricultural in character.
Finally, the philosophy of the time was based upon the conception that society was static rather than dynamic or progressive in character. Belief in verities eternal and absolute under all conditions was almost universal among educated men. Nowhere was this confidence in absolute and eternal truth more marked than in the domain of political thought. The various utopias which had been outlined by political theorists and philosophical dreamers had held before the mind of man a goal which he should strive to attain. An ideal state was pictured in which, if it were once reached, humanity would cease from striving and finally at rest would contemplate with complacency the hardships of the past and anticipate with satisfaction the joys of the future. It is of course true that political philosophers had not at the end of the eighteenth century, any more than at any other time in the history of man, reached a complete agreement as to the concrete measures whose adoption was necessary for the realization of the perfect state of which all had their visions. It is also true that the concrete measures which were recommended were frequently, if not always, evidently devised in view of the peculiar evils which each such prophet sought to remedy. At the same time while the political doctors disagreed somewhat as to the proper medicine, they all believed that some medicine would be permanently efficacious, and few, if any, of them imagined that the patient would by mere development so change as to make changes of treatment necessary. The proper treatment once discovered was to be continued for all time and would be followed by the desired results.
Under the influence of this static conception of society the political philosophers and lawgivers of the end of the eighteenth century had accepted as a fundamental and everlasting political theory the idea that the state was based upon a compact entered into between governors and governed. The governed - i.e., the mass of mankind - were considered to have reserved at the time of making this compact, certain rights which were often spoken of as natural rights and of which they might not be deprived. This doctrine of natural rights had for its corollary the recognition of a wide sphere of individual liberty which should be unregulated by government action. This corollary ultimately came to be known as the principle of laissez faire.
It was in these conditions and under the influence of these ideas that the constitution of the United States was adopted. This instrument was framed for communities geographically isolated, socially diverse, living a most simple life and in a comparatively low stage of economical development. It was intended to realize through actual application the idea of a social compact, the theory of natural rights and the laissez-faire policy. It was based finally upon the fundamental proposition that man could by searching find out and apply absolute and eternal political truth.
The geographical isolation and social diversity of the states led to the laying of great emphasis in the constitution of the United States upon the necessity of preserving for all time the same degree of state sovereignty and independence as was recognized to exist in the latter part of the eighteenth century. Each state was secured beyond the possibility of change equal representation in the Senate while its consent was made necessary to its division or its union with other states. No serious attempt was made to secure uniformity of law, and subject to the necessity of maintaining a republican form of government, each state was left to arrange its internal organization as it saw fit. Indeed, important matters affecting all the states were left to the determination of each state, such as suffrage and the method of choosing presidential electors.
The social-compact, natural-rights and laissez-faire theories found their expression in the enumeration of governmental powers, the reservation to the people of all powers not granted to the government, certain express denials of powers of government action and the formulation of a series of individual rights which the government was not permitted to infringe.
Finally, the confidence of the fathers in the existence of eternal political verities and the possibility that fallible humanity might ascertain and formulate them is seen in the difficulty if not impossibility of amending the constitution which resulted from the processes of amendment provided. For as Dicey says:
The sovereign of the United States has been roused to serious action but once during the course of ninety years. It needed the thunder of the civil war to break his repose and it may be doubted whether anything short of impending revolution will ever again rouse him into activity.
If we compare with the conditions which existed at the time the constitution was adopted those in which we are now living, what a contrast at once presents itself! The industrial revolution by which the last century and a half of Western European development has been characterized has changed the face of most civilized countries. Power machinery with its attendant factory system has so modified productive processes that in almost all highly developed countries classes of industrial workers have arisen which in numbers and in minute differentiation of occupation surpass anything the world's history has hitherto exhibited. Improved methods of transportation have so facilitated intercourse and so enlarged the sphere of man's activity that what were once regarded as insurmountable obstacles to communication are no longer so considered, and what once seemed to be natural political boundaries have lost their significance.
In other words, classes have developed whose relations cannot be defined in accordance with the rubrics of a once almost universally accepted legal lore and centralization is necessary if the political system is to be in accord with recognized economic facts. Just as once the privilege of the baron fell before the rights of the merchant, and local law gave way to national law, so at the present time the rights of labor are being emphasized at the expense of the employer and a political organization based on more or less local isolation is being forced to succumb to the needs of an economic system founded upon more general intercommunication.
This development has not failed to exercise an effect on the United States. The improvement in the means of transportation has, for example, been most marked on this side of the water. The digging of waterways, the building of railways, and the spread of the telegraph and telephone have caused the geographical isolation of the once separated states to disappear. The development of American industry and commerce, notwithstanding the acquisition of the fertile fields of the West and the attendant agricultural development, has caused the former overwhelmingly predominant rural character of the population to disappear. The gradual spread of the English language has brought about an almost complete unity of speech while the greatly diminished influence of religious differences taken together with the complete separation of church and state has prevented the centrifugal force of creeds from making itself felt.
Finally it is to be noticed that the intellectual attitude of what are usually considered the more intelligent classes is quite different from that which was noticeable in the latter part of the eighteenth century. The formulation of the evolutionary theory of development in the world of science has not failed to have its' influence on political thought. Students of politics are coming more and more to the conviction that a static society is impossible and that absolute political theories are incapable of application in the changing conditions which have become so noticeable since scientific methods have been applied to the conduct of life. More and more political thinkers and social students are recognizing that a policy of intelligent opportunism is the policy most likely to be followed by desirable results and that adherence to general theories which are to be applied at all times and under all conditions is productive of harm rather than good.
This common attitude of skepticism with regard to the desirability of attempting to postulate fundamental political principles of universal application has naturally caused questions to be raised as to the applicability under present conditions of the two great theories so commonly accepted at the end of the eighteenth century, viz., the theories of the social compact and of natural rights. Furthermore, the discovery that through the application of scientific methods man has a much greater influence over his environment than was formerly regarded as possible has opened the way to so many apparently effective methods of governmental regulation that a serious blow has been dealt to the laissez-faire theory.
The question which has been chosen for discussion this morning is: Can a practically unamendable constitution, adopted in the conditions and under the influences of the political thought prevailing at the end of the eighteenth century, be adapted by judicial interpretation to the needs and thought of the twentieth century without causing us to lose the advantages which are commonly regarded as attached to a written constitution? Before the attempt is made to answer this question attention must be called to two things.
In the first place, it is now an accepted doctrine of American constitutional law that it is both the right and the duty of the courts to declare in cases which come before them in the ordinary exercise of their jurisdiction that any act of the legislature is unconstitutional which clearly violates a provision of the constitution. It would be unprofitable for us to enter upon the discussion of the question which has recently been made the subject of considerable debate, whether the courts in exercising this power have been guilty or not of usurpation. However a this may be, it is difficult to imagine that the federal courts at this day will relinquish the exercise of a power whose existence has been recognized so long, except as the result of some sort of personal pressure brought to bear upon the judges which will diminish greatly the independence they now enjoy. It is commonly believed that the judges of the United States courts may constitutionally be removed only through the process of impeachment, which as provided for in the constitution is not a method of removal adapted for use in influencing judicial decisions on constitutional questions. The constitution, however, has no word to say as to the impeachment of judges as judges. It is only as civil officers of the United States that they have been made subject to this process of removal from office. The constitution does, however, contain a specific and express provision with regard to the tenure of judges. It says that they shall hold their office during good behavior. It does not define good behavior nor does it provide a method, outside of the method of impeachment applicable to all civil officers, for determining when a judge is guilty of misbehavior. It has been claimed more than once in Congress that it is within the power of the legislative authority of the United States by law to define what is misbehavior and to provide a method by which misbehavior may be ascertained which is less cumbersome than the present method of impeachment. Until such action is taken, it is naturally impossible to say what would be the decision of the Supreme Court as to its propriety. If, however, such action were regarded as constitutional it would be possible for Congress through the exercise of a power of removal similar to that now possessed by the legislature of Massachusetts over the judges of that state to bring a pressure to bear upon the judges of the federal courts which would have an important influence on the judicial interpretation of the constitution.
In the second place, it is to be noted that the doctrines of the social compact and of natural rights while regarded as truths were not actually made a part of our constitutional law except in so far as specific rights conceived of as natural rights were incorporated into the constitution and were thus accorded judicial protection. At the same time the tendency of our courts has been to read into such general provisions as that preventing the government from depriving a person of life, liberty, or property without due process of law, quite a number of natural-rights ideas, and to endeavor, in their efforts to deny the right of the government to exercise particular powers, to obtain aid and comfort from the theory of laissez faire. A good example of such action is to be found in an opinion of the supreme court of Missouri which said in declaring unconstitutional a law levying a progressive inheritance tax to provide scholarships for indigent students at the state university:
Paternalism, whether state or federal, as the derivation of the term implies, is an assumption by the government of a quasi-fatherly relation to the citizen and his family, involving excessive governmental regulation of the private affairs and business methods and interests of the people, upon the theory that the people are incapable of managing their own affairs, and is pernicious in its tendencies. In a word, it minimizes the citizen and maximizes the government. Our federal and state governments are founded upon a principle wholly antagonistic to such a doctrine. Our fathers believed the people of these free and independent states were capable of self-government; a system in which the people are the sovereigns and the government their creature to carry out their commands. Such a government is founded on the willingness and right of the people to take care of their own affairs and an indisposition to look to the government for everything. The citizen is the unit. It is his province to support the government and not the government's to support him. Under self-government we have advanced in all the elements of a great people more rapidly than any nation that has ever existed upon the earth, and there is greater need now than ever before in our history of adhering to it. Paternalism is a plant which should receive no nourishment upon the soil of Missouri.
In a way, therefore, it may be said that the political thought prevalent at the end of the eighteenth century has been read into our constitution by the courts. But unless we consider the doctrine of stare decisis just as controlling in constitutional as in other cases it may not be said of our constitutions and particularly of the United States constitution that they adopted as a permanent guide for future action any of the theories which have been mentioned. It is only because of judicial interpretation that they have legal force. By a further process of judicial interpretation they may lose their authority.
So far as concerns the effect of the laissez-faire theory on the judicial interpretation of the constitution, even the application of the doctrine of stare decisis to constitutional cases will not interfere with a considerable enlargement of the powers of the federal government. In a number of instances, among which the attempted exercise of the power to regulate commerce is perhaps the most marked, the federal courts through the denial of the propriety of the exercise of state powers laid the basis for the exercise of federal power. However they may have been influenced in their decisions by the laissez-faire theory, their actual decisions recognized the existence of federal power. For state power was denied because the power attempted to be exercised had been conferred by the constitution upon the federal government. When in the course of our economic development it came to be believed that Congress should take positive action, the decisions denying state power were thus at the same time precedents in favor of the propriety of federal action. On the other hand, not all the decisions recognizing that state action was proper may be regarded as precedents in favor of the proposition that Congress is without jurisdiction. For through the adoption of the rule that state action is in many cases proper only because the federal government has not acted, the question as to the propriety of federal action is left open for determination, to be influenced if not controlled by the conditions existing at the time the determination is made.
In the discussion of the possibility by judicial interpretation of adapting the constitution to changing economic and social needs we must then remember: first, that it has not been as yet determined how much pressure may constitutionally be brought by Congress upon the federal judiciary to interpret the constitution in the way desired by Congress; and second, that our constitution has been made by past judicial interpretation to take on a meaning which is not necessarily the only meaning which may be given to it. Finally, attention should be called to the fact that the present interpretation which is popularly given to the constitution is in many cases a political rather than a judicial interpretation. Political parties as well as courts have been influenced by the political and economic theories of the eighteenth and early nineteenth centuries. Under their influence Congress has not even considered the question whether it may exercise powers which a careful study of the constitution might reveal that Congress possessed. An historical tradition with regard to the constitution has sprung up which finds its basis in political expediency rather than in constitutional power. For example, Congress has only just begun to exercise its power to regulate commerce among the several states. What the limits of that power are no one can with safety say, but that they transcend those assigned to that power by the accepted political interpretation would be denied by few who have made a careful study of the constitution itself. Now this political interpretation of the constitution may easily change. It is not in any way influenced by the doctrine of stare decisis. For Congress is not bound by the decisions of its predecessors even on constitutional questions.
If, however, we leave out of consideration the possibility that Congress may diminish the independence of the federal judiciary, if we put out of our minds the expectation that the courts will adopt any new method of constitutional interpretation, and if we confine ourselves to the consideration of the present judicial interpretation of the constitution, how shall we answer the question? In other words, are the courts through their powers of interpretation at the present time adapting the constitution to changing economic and social conditions?
To answer this question adequately would of necessity involve an exhaustive examination of almost our entire constitutional law from the point of view of its historical development. Such an examination would, however, be both impossible and out of place on this occasion. Resort to some other less thorough and less satisfactory method is thus unavoidable. It might be suggested that citations from opinions might be made which would show the attitude of the Supreme Court with regard to the constitution. But any citations which might be made as indicative of the attitude of the court, in addition to lacking the authority of judicial decision, might be met by other citations taking the opposite point of view. For in the century and a quarter of its history the Supreme Court has been subject to a variety of influences and has inevitably expressed conflicting opinions.
The only method which is applicable on this occasion would seem to be to consider certain important lines of decisions in the hope of finding from a consideration of the law developed by them an answer to the question which has been propounded.
Let us take in the first place the decisions which have dealt with the powers of the federal government and particularly those having to do with navigation and commerce. The constitution does not treat of navigation apart from commerce except in so far as it confers admiralty and maritime jurisdiction upon the federal courts. In the early days when local differentiation made state independence more important than at present - for state lines now bear little relation to our economic system - the court was inclined to distinguish intrastate from interstate navigation, and to recognize a very narrow admiralty jurisdiction based upon British precedents. At the present time, however, the distinction between a navigation subject to state and one subject to federal regulation has practically ceased to exist, and an admiralty jurisdiction suited to the geographical conditions of the North American continent has been developed out of that which originated in such different conditions as were presented by Great Britain.
The way in which this result was reached is interesting as evidencing the methods of judicial interpretation through whose application the constitution has in this particular been adapted to new social and economic conditions. Originally the Supreme Court was of the opinion that the admiralty and maritime jurisdiction intended to be conferred upon the federal courts was geographically limited to waters affected by the ebb and flow of the tide. The case which laid down this rule was decided at a time when navigation on the Great Lakes and western rivers had not developed to an important extent. Later on Congress by statute extended the jurisdiction to the Great Lakes and the Supreme Court declared the statute constitutional. Still later the Supreme Court without any action by Congress extended the admiralty jurisdiction to all the important western rivers and finally based on the admiralty clause, which merely gives power to the courts, the power of Congress to regulate the operations of all vessels on navigable waters regardless of the fact that they may not be engaged in commerce.
Somewhat similar has been the judicial interpretation of the constitutional power of Congress to regulate commerce on land. While the Supreme Court has based the power of Congress to regulate navigation in large degree on a clause in the constitution which merely gave the courts the power to fix the substantive law of admiralty, in the case of commerce by land the Supreme Court has based the power of Congress to regulate part at any rate of the substantive law of master and servant upon the power given in the constitution to Congress to regulate commerce among the several states. The safety-appliance and the employer's-liability cases have thus recognized that Congress in cases involving interstate commerce may modify the assumption-of-risk and the contributory-negligence doctrines of the common law.
Another instance of the adaptation by judicial interpretation of the constitution to changing social and economic conditions is to be seen in the lottery and pure-food-law cases which have recognized that Congress through the exercise of its commerce power may take the privilege of engaging in interstate commerce from articles, commerce in which is in the opinion of Congress either productive of immorality or liable to endanger the public health. This result has been reached although it is recognized that Congress is not by the constitution the guardian of either the public morals or the public health.
The Supreme Court has in the second place expressed its belief that such general provisions of the constitution as that contained in the fourteenth amendment prohibiting a state from depriving any person of life, liberty, or property without due process of law, are to be interpreted in view of local conditions. Thus it has been held that, in the conditions existing in New England where manufacturing is of great importance, the power of eminent domain may be used in order to take property for the purposes of a dam used by a private manufacturing company. In the mountainous regions of the West it has been held proper to make use of the same power to take property for the purposes of an aerial railway used only by a private mining company. Finally, in the arid regions of the Pacific States it is regarded as constitutional to make use of both the taxing power and the power of eminent domain to further the irrigation of privately owned lands.
Indeed it may be said in a general way that the judicial interpretation which has already been given to the constitution has shown itself capable of adapting that instrument to most of the varied geographical conditions which exist in a continent as diversified as is North America and to permit of the most advantageous development of its economic resources.
It is true that as yet the Supreme Court has not through the judicial interpretation of the constitution adapted it so fully to the changes in economic and social conditions which have been due to the industrial revolution of the last one hundred and fifty years. American courts rather generally, and the Supreme Court to a certain but after all on the whole rather small extent, have not been able to divest themselves of the idea that legal liberty is the only liberty which is protected by the constitution and have sometimes forgotten that legal liberty in the absence of economic liberty is a shadow without substance, under which there is little if any protection from the burning heat of economic struggle.
A case in Pennsylvania has thus laid down the proposition that an employer is denied his constitutional right to the pursuit of happiness by a law which requires him to pay his employes once in two weeks. In the volume of the digest in which this case is mentioned the very next case referred is to the effect that, one is not denied the right to the pursuit of happiness by a law forbidding the smoking of opium. The immediate juxtaposition of these two cases is interesting as emphasizing the tendency of American courts to recognize that while individual rights are not violated by laws regulating conduct regarded as inconsistent with prevailing ethical views, they are infringed by any attempt to protect the classes weaker in economic power by diminishing their sphere of legal liberty.
It must be admitted, however, that the Supreme Court has not as yet, largely because of a defect in our appellate procedure, been in a position to express itself upon some of the most important phases of the liberty guaranteed to the individual by the constitution. But in most of the cases which have come before it where it was possible to prove that legal liberty must be curtailed in the interest of health and safety its decisions have recognized that under the economic conditions in which we live the liberty which we may have is much less than would have been recognized a century ago as our due. It may be added also that in a number of cases the Supreme Court has expressed itself in such a way as to show clearly that it is aware that the economic liberty of vast classes of persons at the present time has been so curtailed that the sphere of legal liberty for which the advocates of a laissez-faire policy contend must also be seriously curtailed if we are to protect the economically weak from their own really involuntary acts. Thus in the case of sailors the court has held constitutional an act of Congress prohibiting under a penalty any payment of wages in advance, and in the case of miners has upheld state statutes which have regulated the method of paying employes by providing for the cashing of coal orders when presented to their employers, and for the weighing of coal without screening where miners are paid by the weight of coal. In one of these cases the court refers to the necessity of protecting the sailor against his own improvidence, and in another cites with apparent approval from the decision of the state court appealed from where it is said:
The legislature evidently deemed the laborer at some disadvantage under existing laws and customs, and by this act undertook to ameliorate his condition in some measure by enabling him or his bona fide transferee, at his election and at a proper time to demand and receive his unpaid wages in money rather than in something less valuable. Its tendency, though slight it may be, is to place the employer and employe on equal ground, and, so far as it accomplishes that end, is commendable.
It is, of course, true that a very few of the decisions of the Supreme Court have been a grevious disappointment to some of the most ardent advocates of social reform, but it is to be remembered that these decisions were usually made by a divided court, that the personnel of the court is seldom the same for a very long period, that its members are appointed by an officer who is being brought day by day closer to the people and finally, that the Supreme Court has been known to reverse its opinions, and is not impervious to criticisms and to public demands.
There would seem therefore to be really no serious danger that judicial interpretation as seen in the long series of decisions of the Supreme Court is unable to adapt our practically unamendable constitution to changing economic and social conditions. If this may not be said of all the state courts our remedy is close at hand and may be applied without abandoning the traditions of the past.
If state courts are, because of their adherence to precedent, unable or unwilling to adapt the provisions of state constitutions to changes in economic conditions, we may amend the state constitutions. Whether that is done by the ordinary methods of constitutional amendment or by the method which has come to be spoken of as "the recall of judicial decisions" is quite immaterial from the viewpoint of the question under consideration. If we regard the "recall of judicial decisions" with suspicion and at the same time consider the present method of constitutional amendment as too difficult, too slow, or too cumbersome, it is a comparatively easy matter to adopt an easier, quicker, and more simple method. The various methods of amendment provided by different state constitutions offer us a choice of methods wide enough to suit almost any taste.
If when our state constitutions are so amended as to make it possible for the state courts to bring their decisions into accord with existing economic conditions, those courts still persist in rendering decisions with regard to the constitutionality of state laws from the viewpoint of the constitution of the United States which are not in accord with the decisions of the United States Supreme Court - in other words, if the state courts refuse to recognize the Supreme Court as the final arbiter as to the meaning of the United States constitution - we should urge upon Congress the necessity of passing the bill introduced at its last session providing for an appeal to the Supreme Court from the decisions of the state courts on federal questions as well in cases in which state laws have been held unconstitutional from the point of view of the federal constitution as in those cases in which they have been held constitutional. If that were done, the final judicial interpretation of the United States constitution would in all cases be made by that court which, whether because of the method of appointing its members, or because of the wide public experience which most of them have had, or because they come from widely different and differing parts of the country, has shown greater capacity than perhaps any other judicial body to treat the constitution of the United States as an instrument, to use the words of its judges, "made for an undefined and expanding future and for a people gathered and to be gathered from many nations and of many tongues," as an instrument whose " unchanging provisions are adaptable to the infinite variety of the changing conditions of our national life."