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§ 25. The "Spirit" of the Constitution.

Closely allied to the assertion that the Constitution is to be interpreted in the light of "natural law," is the doctrine that the fundamental purpose of the constitutional fathers was the erection of a free republican government, and that, therefore, the be absolute and without control; although the authority should not be expressly restrained by the constitution, or fundamental law of the State. The people of the United States erected their Constitution or form of government, to establish justice, to promote the general welfare, and secure the blessings of liberty; and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundations of the legislative power they will decide what are the proper objects of it. The nature and ends of the legislative power will limit the exercise of it. This fundamental principle follows from the very nature of our republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. There are acts which the federal or state legislatures cannot do without exceeding their authority. There are certain vital principles in our free republican governments which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty or private property, for the protection whereof the government was established. An act of the legislature (for I cannot call it a law) contrary to the great first principle of the social compact, cannot be considered a rightful exercise of the legislative authority. The obligation of a law in governments established on express compact, and on republican principles must be determined by the nature of the power on which it is founded. A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a judge in his own cause; a law that takes property from A and gives it to B: It is against all reason and justice for a people to entrust a legislature with such powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit of our state governments amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The legislature may enjoin, permit, forbid and punish; they may declare new crimes; and establish rules of conduct for all its citizens in future cases; they may command what is right and prohibit what is wrong; but they cannot change innocence into guilt; or punish innocence as a crime; er violate the right of an antecedent lawful private contract; or the right of private property. To maintain that our federal or state legislature possesses such powers if they had not been expressly restrained, would in my opinion be a political heresy, altogether inadmissible in our free republican govern

ments."

Constitution should, whatever its express terms may provide, never be so construed as to violate the abstract principles deducible from this fundamental fact. Generally speaking, whereas the so-called natural laws have reference to the private rights of the citizen, the protection of his person and property; these principles claimed to be deducible from the spirit of the Constitution as the framework of a free government have reference to the public and political rights of the individual.

Stated in this abstract, philosophical form, the doctrine that the " Spirit" of the Constitution is to prevail over its language has no more legal validity than has the doctrine of natural law.

§ 26. Applicability of Constitutional Provisions to Modern Conditions.

In construing the Constitution the very proper and indeed absolutely necessary principle has been followed that that instrument was intended to endure for all time and that its grants of power are, therefore, to be interpreted as applicable to new conditions

80.

Justice Iredell though agreeing in the decision of the court dissented from Chase's reasoning, saying: "If, then, a government composed of legislative, executive and judicial departments were established by a Constitution which imposed no limits on the legislative power, the consequence would immediately be that whatever the legislative should choose to enact would be lawfully enacted, and the judicial power could never interfere to pronounce it void. It is true that some speculative jurists have held, that a legislative act against natural justice must in itself be void; but I cannot think that under such a government, any court of justice would possess a power to pronounce it . . If any act of Congress, or of the legislature of a State, violates those constitutional provisions [of the United States Constitution], it is unquestionably void; though, I admit, as the authority to declare it void is of a delicate and awful nature, the court will never resort to that authority but in a clear and urgent case. If, on the other hand, the legislature of the Union, or the legislature of any member of the Union, shall pass a law within the general scope of their constitutional power, the court cannot pronounce it void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard; the ablest and purest men have differed upon the subject; and all that the court could properly say in such an event, would be, that the legis lature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice."

as they arise. By this is not meant, however, that these new conditions shall in any case justify the exercise of a power not granted, or create a limitation not imposed by the Constitution, but that the powers which are granted shall, if possible, be made applicable to these new conditions.

Thus the grant to the Federal Government of the control over interstate and foreign commerce is held to be one the extent of which, though not its importance, is not varied by the fact that the instrumentalities by which it is carried on are widely different from those employed in 1789. On the other hand, if the writing of insurance policies, or the dealing in banking instruments of exchange were not, in 1789, considered interstate commercial transactions, and by reason of their very nature could not properly have been, no augmentation in their amount and no increase in the practical need for their federal regulation will justify a construction that will attach an interstate commercial character to them, and thus bring them within the power of the Federal Government to control.

The principle, as it has been stated, does not prevent a construction by which the powers and limitations enumerated in the Constitution are made applicable to new conditions of fact which were not and could not have been foreseen by those who adopted the Constitution. In the Dartmouth cases Marshall says: "It is more than possible that the preservation of the rights of this description was not particularly in the minds of the framers of the Constitution when the clause under consideration, impairment of contracts, was introduced into that instrument.

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It is not enough to say that this particular case was not in the mind of the convention when the article was framed, nor of the American people when it was adopted. It is necessary to go further and to say that had this particular case been suggested the language would have been so varied as to exclude it, or it would have been made a special exception. The case being within the words of the rule, must be within its operations likewise, unless there is something within its literal construction so ob48 4 Wh. 518; 4 L. ed. 629.

viously absurd or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expounded the Constitution in making it an exception." Again, in Re Debs9 the court say: "Constitutional provisions do not change, but their operation extends to new matters as the modes of life and habits of the people vary with each succeeding generation. The law of the common carrier is the same to-day as when transportation by 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. Just so is it 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 then unknown to the fathers, and it will operate with equal force upon any new modes of such commerce which the future may develop." 50

49 158 U. S. 564; 15 Sup. Ct. Rep. 900; 39 L. ed. 1092.

50 To the same effect, as the foregoing, is the declaration of the court in South Carolina v. United States (199 U. S. 437; 26 Sup. Ct. Rep. 110; 50 L. ed. 261), in which they say: "The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now. Being a grant of powers to a government, its language is general; and, as changes come in social and political life, it embraces within its grasp all new conditions which are within the scope of the powers in terms conferred. In other words, while the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. This in no manner abridges the fact of its changeless nature and meaning. Those things which are within its grants of power, as those grants were understood when made, are still within them; and those things not within them remain still excluded. As said by Mr. Chief Justice Taney in Scott v. Sandford (19 How. 393; 15 L. ed. 691), ‘It is not only the same in words, but the same in meaning, and delegates the same power to the government, and reserves and secures the same rights and privileges to the citizen; and in its present form it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day.""

Justice Story, in Martin v. Hunter's Lessee (1 Wh. 304; 4 L. ed. 97), discussing the principle of construction to be applied to the Constitution, declares: "The instrument was not intended to provide merely for the

§ 27. The Wilson-Roosevelt Doctrine of Construction.

A doctrine of construction radically different from that which has just been stated, and which has never been accepted by the Supreme Court, is that originally put forth by James Wilson of Pennsylvania, and in recent years urged by President Roosevelt.

This doctrine is, that when a subject has been neither expressly excluded from the regulating power of the Federal Government, nor expressly placed within the exclusive control of the States, it may be regulated by Congress if it be, or become, a matter the regulation of which is of general importance to the whole nation, and at the same time a matter over which the States are, in practical fact, unable to exercise the necessary controlling power. According, then, to this doctrine, the Ninth and Tenth Amendments which declare that: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people," and that "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," are not to be interpreted as reserving to the States, or to the people, those powers which, though not granted to the Federal Government, are, in fact, such as are of federal importance and which the States are unable effectively to exercise.

The argument of James Wilson, made in 1785 when the United States was under the Articles of Confederation but applicable, a fortiori, to the present Constitution, is in the following language: Though the United States in Congress assembled derive from the particular States no power, jurisdiction, or right

exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications which at the present might seem salutary might in the end prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mold and model the exercise of its powers as its own wisdom and the public interests should require."

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