Finally, the difficulty of amending the constitution of certain states, and especially the federal constitution, is bringing the judiciary into disfavor. When the nation consisted of a homogeneous population confined to the Atlantic states, the amendment of the constitution offered no insuperable difficulty. The framers of the constitution could not have intended to provide the country with an inflexible instrument, for "they were trying to escape from the restraints of a still more rigid constitution."[2] None the less, with the growth of slavery, the admission of new states, the development of manufacturing, mining and commerce, and the consequent emergence of sectional differences, the difficulty of amendment has increased until vetoes interposed by the courts have become less and less suspensory and more and more absolute in character. Nearly eighteen years were required to restore to Congress the power to levy an income tax, though it was generally supposed that Congress possessed this power until the adverse decision of the Supreme Court in 1895. As a matter of fact, Congress imposed an income tax in 1861 and the Supreme Court held it constitutional.[3] For more than two generations there was an increasing demand for the election of United States senators by popular vote, but so difficult did formally amending the constitution prove in this case that years before it was accomplished election by the legislature became a mere form and was superseded by direct primaries in many states. No other important country is operating under such a rigid constitution. Amendment by interpretation is occasionally practised by the courts, but too infrequently to afford an adequate remedy. Besides, as with religious creeds, forced construction sometimes makes a laughing-stock both of the constitution and the courts. The result is that the American people are barred from passing measures which many other countries deem necessary to their well-being. Among such measures are "pensions or public insurance in case of old age, accident or sickness where the recipient of the pension or insurance is not actually a pauper and where the fund from which such pension or insurance is obtained is derived from taxation; the regulation of the hours of adult male labor in any but the
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instead of Springfield, St. Louis instead of Jefferson City, and so on? Is it likely that a court sitting in New York City would have gone wrong in construing tenement-house legislation? Questions may well seem abstract and academic in Albany or Springfield that are concrete and practical in New York or Chicago. Judges there may well fail to appreciate the practical aspects of legislation which a court sitting in the metropolis, whose judges met and talked with social workers in the ordinary intercourse of society, would perceive. Our rural capitals are not a little to be blamed if the course of justice in our highest court with respect to urban problems has been guided largely by judges who looked at them through rural spectacles.[1]
