certain equipment, involving the possession of a considerable capital?

Or to forbid any corporation to engage in it, without a capital stock of say $10,000,000?

Or to give a monopoly of any particular kind of such commerce to a particular person or class of persons?

New York apprehended the possibility of such action in 1788, when in her vote to ratify the Constitution of the United States she insisted on the necessity of an amendment to it providing that "the Congress do not grant monopolies, or erect any company, with exclusive advantages of commerce." Similar action was taken by Massachusetts, New Hampshire and North Carolina.

Would it not, again, be an admissible regulation to provide that no goods should be the subject of interstate commerce until they had been inspected by Federal officials? Or unless, if manufactured goods, they had been manufactured at an establishment conducted in a way approved by Federal authority? Long steps in these directions have indeed already been taken by the Acts of Congress as to "Pure Food," and the inspection of packing houses. 19

In a recent work by one of my predecessors in this office, 20 statutes going even farther than this are pronounced necessary to square our political system with the economic conditions of the times.

I should not agree with all his conclusions, but the Constitution of the United States is, in my opinion, flexible enough to bear a construction supporting legislation by Congress in such directions far in advance of anything hitherto attempted.

The Supreme Court of the United States has recently found one point of flexibility, which had long lain undiscovered. There may be another of quite a different character: there is, if the courts choose to say so.

In arranging the mechanism of the Constitution, three possible safety valves were provided.

34 U. S. Stat. 674, 1260, 768.

20 Frank J. Goodnow, Social Reform and the Constitution.

One is calculated to prevent an explosion in consequence of the pressure of public opinion in favor of placing undue burdens on property. It is the provision against taking property without due process of law, which has been adjudged to invalidate a tax by the state of the owner's domicile on his personal property, kept elsewhere.21

The two others are calculated to prevent an explosion in consequence of the pressure of public opinion in favor of legislation in new fields of political science. They are, first, the guaranty by the United States to each state of a republican form of government, and, second, the provision that Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; when taken in connection with the preamble, stating that among the purposes of the Constitution are to establish justice, and to provide for the common defence and to promote the general welfare.

A guaranty imports the existence of a principal obligation. The primary duty rests upon the state. Its authority must be exercised under republican forms. Its judges, under their oath to support the Constitution of the United States, must recognize and respect, in the decision of causes, this fundamental obligation. Arising by necessary implication, it stands on the same footing as would an express provision of the Constitution of the United States that every state in the Union shall always maintain a republican form of government, and do no act inconsistent with the essential nature of a republic.

The construction of the "common defence and general welfare” phrase, first used in the Articles of Confederation, which has been generally accepted has been that laws to that end must be confined to taxation, and to taxation for purposes such as fall within one, or a group of, the specially enumerated powers of Congress. It is quite within the range of possibility that the courts will abandon this position (which the Supreme Court has never, I believe, formally adopted), and hold that any law is valid which Congress deems appropriate to provide for the " Union Transit Co. v. Kentucky, 199 U. S. 194, 202, 211.

common defence and to promote the general welfare, provided it contravene no particular provision of the Constitution.

Gouverneur Morris, in preparing the final report of the Committee on Style, in the Convention of 1787, gave this clause the form of a distinct and separate grant, and while it was immediately, on the objection of Roger Sherman, put back into its previous and present position, there have never been wanting those who have contended that Morris was right in his view of its legal effect. The point was made by Richard H. Lee in October, 1787; considered by the Federalist, and discussed at great length by Madison in 1830.22 It presents a disputable question obvious to every one who reads the section. The framers of the Constitution no doubt inserted this clause out of abundant caution, to cover taxation to pay the war debt incurred under the old government. But what did the plain people understand by it, when they voted to ratify the work of the Convention of 1787? How this question may be answered by the Supreme Court of another century, no one can now be

sure.

The present court has significantly said, this year, that the grant to Congress of power to regulate interstate commerce has resulted in securing "a new welfare, a welfare which transcends that of any state," or rather one "constituted of the welfare of all the states." 23

Abraham Baldwin of Georgia stated on the floor of Congress, in 1799, that the members of the Convention of 1787, of whom he was one, did not anticipate that Congress would exercise each of the powers that were conferred upon it, but thought their mere existence would sufficiently obviate abuses that might otherwise be feared.24 His anticipation has certainly been so far realized, that Congress has refrained from doing many things which it can do.

Consider for a moment the undeveloped possibilities of its powers under the XIVth Amendment. Suppose a state vio

22 Farrand, Records of the Federal Convention, III, 483, 379.

"Oklahoma v. Kansas Gas Co., 221 U. S. 229, 255.

lates one of its prohibitions. Could not Congress make such violation by a state official, whether the Governor or one of his subordinates, a crime?

Could not Congress provide a special form of procedure, under which any state statute might be summarily and directly impeached as unconstitutional before the Supreme Court of the United States, and the President directed, should the court support the attack, to issue a proclamation that the law is void? We need not disturb ourselves over the possibility that Congress may abuse its powers so as avowedly to promote injustice. As James Wilson observed in the Pennsylvania Convention in 1787, it is not to be presumed that it will ever prove "an association of demons." 25

But it well may happen that it may extend the exercise of its powers unwisely. The success of our scheme of government depends on preserving the sovereign control of each state over most of the relations of its inhabitants, whether between themselves or with others. We have too vast a country to be governed wholly, or even largely, by a central authority. Our rulers would be too remote from most of the people affected by their action to understand their wants or to act under the full force of those restraints that ought always to accompany representative responsibility. Popular sentiment, thus far, has generally indicated a repugnance to unnecessary extensions of federal authority.

But it is from the future unfolding of executive, rather than of legislative power, that the perpetuity of our government can be said to remain in doubt.

A President of the United States declared, if correctly reported, in a public address, within the last few years, that he was for the Constitution, when it preserved the people's rights, but not when it perpetuated the people's wrongs.

After all allowances for the liberty of the platform, such an utterance from such an officer of state indicates the existence of a real danger. It is one that the framers of the Constitution foresaw. Soon after their work was done, a lady, meeting 15 Farrand, III, 163.

Franklin, said, "Well, Doctor, what have we got, a republic or a monarchy?" "A republic," replied he, "if you can keep it.”26 Hamilton predicted 27 the coming of a time "when every vital interest of the state will be merged in the all-absorbing question of who shall be the next President." Half of next year will witness such a merger.

The existence of so great an office brings with it a certain danger. It is that this chief magistrate—who, during his term of office, is an emperor in all but name,-may from urging revolutionary changes in his communications to Congress, or by some stretch of his executive or military authority, come to play the part of a dictator.

It is, in my judgment, only a remote possibility, but that science which we in this Association profess warns us that great powers are apt sometimes to be abused, and that the fathers were right when they declared that eternal vigilance was the price of liberty.

"Farrand, Records of the Federal Convention, III, 85. 27 26. 409.