598
THE GREEN BAG
of the country. The wave of socialistic tendency which is now sweeping over all western nations has greatly added to this alarm. Property knows that it is safe under the Constitution as it is. There is a very general understanding that formal amend ment is impossible. Every year that goes by without such a change strengthens that understanding; but if its power were once broken by an actual amendment, it is impos sible to foresee the forces that might be set in operation. Hence with business interests it is the fact of amendment that controls, and not the subject matter. It is not only true that the Constitution cannot be amended in the method which it provides, but that such a change is neither needed nor best. Formal amendment is not suitable to bring about those slight but steady modifications of fundamental law which adapt it to the progressive life of the nation. It is far too violent a remedy for that purpose. The Constitution has been and ought to be accommodated to the everchanging conditions of society by a process as gradual as the changes themselves. Like the Kingdom of Heaven amendments such as these came not by observation. No political prophet can say of them, Lo, here! or, Lo, there! As the result of more than a hundred years of experience the nation has become acquainted with this process of amendment and is satisfied with it. It must now be accepted as a part of our frame of government of equal validity with the Constitution itself. But if the Constitution is changed by interpretation will it not be entirely swept away by the process? We hear much of this argument in terrorem. In the minds of its advocates the Constitution is a kind of St. Rupert's drop, so fragile that if its ele ments be disturbed in the slightest degree, the entire combination will explode. Ex perience tells us that it is made of sterner stuff. After a century of such interpreta tion by which the instrument has been so altered that Mr. Ford tells us its authors
would not know it, it is to-day performing its functions with far greater vigor than during the period following its adoption. Being a great instrument of government it cannot be read in the library. As the late Justice Miller stated to a company of judges and lawyers at St. Paul a short time before his death: " The great questions of consti tutional law are not to be finally settled by nine men, however wise, taking them off into a room and reading and studying about them. That is the way we start the process. We place the decision the best we can, according to that light, and then see how it works in its actual application to the national life. Very frequently that illumina tion shows us that we have gone far to one side of the true line. With this instruction of experience we place the next case on the other side and observe its application; and so on, from time to time adding to our thought and study the results of experience and observation, we finally evolve the true solution by a process of exclusion and inclu sion. The meaning of the Constitution is to be sought as much in the national life as in the dictionary," In our constitutional theory we habitually assume that the provisions of the Constitu tion have but one meaning, and that plain and precise. But this is not its real charac ter. As Marshall declares in McCulloch v. Maryland, " Its nature requires that only its great outlines should be marked, and its important objects designated. ... It was intended to endure for ages to come, and to be adapted to the various crises in human affairs." An instrument of such a character must necessarily leave a wide latitude for construction. The fact that the Supreme Court in constitutional cases so frequently stands five to four, each division assigning weighty reasons for diametrically opposite views, shows plainly how much the Consti tution in actual application is a matter of interpretation. Now that questions of gov ernment are becoming so largely economic, the majority of our so-called constitutional
