THE NATION AND THE CONSTITUTION cases turn not upon the interpretation of the instrument itself, but upon the con struction of the living conditions to which it is to be applied. Let me illustrate: A statute of New York provided that women should not be employed in manufacturing establishments between the hours of nine o'clock at night and six o'clock in the morn ing. In a recent decision of the Court of Appeals of that state, this law is declared unconstitutional upon the ground that there is nothing in the nature and duties of woman which justify the legislature in discrimi nating as to her employment. The gist of this decision is not the meaning of the Con stitution, but the effect of labor in a manu facturing establishment upon the health of woman and her ability to perform the prim ary duties of home and motherhood; and while none of us would question the ability of the court to interpret the Constitution wisely, some at least would feel that in that case it fell into grievous error in its inter pretation of life. Constitutional cases are in the same manner frequently decided not upon the language of the Constitution, but upon conflicting notions of life in which the courts assert doctrines at variance with both popular and legislative judgment. The danger of this practice is obvious. It gives us a government out of a law library, which, as Napoleon said, is the worst of all forms of government. Courts are very fond of declaring that in the field of constitutional law they never exercise political power but simply declare the private rights of parties. This is true as to the form but untrue as to the result. The ultimate effect of every constitutional decision is not only to declare the rights of the litigants, but to define the powers of government. If the Constitution were pre cise, and capable of but one construction, then the courts in construing it would be simply declaring the rule and in no way making it. But in the case of the Federal Constitution in particular, its provisions are so general as to leave a wide latitude for
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judicial construction; and within the scope of that latitude the court in construing the Constitution is exercising a political power second only to that of the convention that framed the instrument. In the attempt to catch our Constitution in a statement, we have been frequently told of late that " the powers of the federal government remain the same "; that the only change which has been wrought in our progressive history is the change of condi tions to which those powers are applied. We would all agree, I think, that the powers of the federal government remain the same in number; but can any candid lawyer say they remain the same in extent? It is quite true that " no independent and unmentioned power " can rightfully be added to the federal government. But even such accu rate statements cannot settle constitutional questions. When the instrument comes to be applied to a given case the question will still be open, Is the power which has been attempted an independent power, or is it so related to one of the great powers of the Consitutionas to be an appropriate means for its execution? That question presents the old puzzle of the criterion of classification which Austin taught us was the most diffi cult problem of law, and which Madison pointed out in the Federalist to be as impossible of definite solution in the case of the Constitution as it has been in natural history. What to Marshall was an appro priate means for collecting and disbursing the public revenue, was to Jefferson and his school the exercise of an independent power. It is because the Constitution is thus general that it has been possible to adapt it to changing conditions, and make it the beneficent organ of a progressive nation. What is needed to-day is not that the Con stitution shall be construed to mean pre cisely what it meant to Marshall or to Miller, Field and Bradley, but that it shall be applied to present conditions by the same method and in the same spirit wherewith they applied it to the conditions of their
