Open main menu

Page:Harvard Law Review Volume 2.djvu/373

This page needs to be proofread.



under the federal constitution it has been thought by many persons that construction has unwarrantably expanded the scope of the instrument, so as to strengthen the federal government beyond what was mtended. But any accession of federal strength through construction is insignificant as compared to what has come from the gradual march of events, which has made the questioned powers of government signify vastly, I might almost say infinitely, more than they did at first. The bounds of power remain the same, but the new creations that come within its compass give it an importance which those who devised it never dreamed of. When one conveys the lot upon which a palatial dwelling has been erected, he may use the same descriptive terms of metes and bounds as when the lot had value for little more than a play- ground for school-boys; the dwelling is a mere incident to the lot, and it goes with it in conveyance without question, and also without specification. Analogies to this may be seen in the administration of government under written constitutions. John Quincy Adams early pointed out that within the compass of the power to wage war might be found in some great emergency the power to destroy slavery ; and statesmen ridiculed it until the emergency arose under which by the common consent of the loyal people the blow was struck.

The power to regulate interstate commerce when the constitu- tion was adopted had so little immediate interest that it scarcely afforded occasion for the slightest forensic discussion. How is it to-day } The application of steam to locomotion and of electricity to correspondence has worked relatively as great a change in government as it has in the industrial world; it is the federal government, whose functions at first concerned the citizen in his private relations so remotely, which now through its control over internal and external transportation, its cheap and rapid postal service, its taxes that reach us all and reach us often, its absolute control of the currency, and the not remote probability that it may grasp with its unquestionable powers still other subjects which constitute public conveniences ; it is the central government rather than the State that now seems to stand before the people as the chief representative of public order and governmental vigor, and as the possessor of general rather than of exceptional and particular powers. It may be that by and by the federal legis- lature, surveying the field of interstate commerce, and taking