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TECTIVE DUTIES .
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HE extent of the power of Congress, under the Constitution, to regulate interstate commerce has been more thoroughly investigated during the last six years than ever before, unless possibly during President Jefferson's second administration. The ardent opposition to the Railroad Rate bill, the Employers' Liability bill, and other measures proposed during President Roosevelt's administration, for the purpose of controlling the great railroad and other corporations through the power of Congress to regulate commerce, led to thorough inquiry into the basis of the power; but, as is usual when radically different positions are taken by opposite parties to a debate, both sides advanced arguments which Sober reason would find it difficult to approve. On the one hand, supporters of the administration claimed powers for Congress exceeding what were justified by the origin of the Constitution or the decisions of the Supreme Court; on the other hand opponents of the President rested much of their case upon a statement of facts, so partial as to be substantially incorrect.
It therefore seemed worth while to undertake an
independent inquiry into the events which preceded and attended upon the framing of the Constitution and the first operating of the new government under it, in order to ascertain the opinions and purposes of the men who framed the instrument and their contemporary interpretation of the scope of the powers of the government; and this with particular reference to the commerce clause. I therefore entered upon the inquiry, proceeded with it for several years, as my leisure permitted, and present the results in the following essay. Of course such a study is quite different from an essay in constitutional interpretation. For, if the terms of a constitution are plain, their scope cannot be varied by reference to the state of contemporary opinion in the community in which, or the assembly by which, the instrument was framed. Nevertheless, it may be not without interest, and perhaps not without value, to reproduce, as graphically as we can, the events and the spirit of the times in which the Constitution was made, so that we may see again with the eyes and think the thoughts of its framers concerning their handiwork. In one important respect the view-point of this essay differs from that of other recent publications upon the same general subject. For they have assumed that the terms of the Constitution are accounted for by the earlier efforts to enlarge the
commercial powers of the old Congress; and this opinion has sometimes been so expressed as to imply that the Government of the United States is a device for regulating trade, and that the scope of the powers of that government is to be determined by ascertaining what were the nature . and extent of the commercial regulations desired by certain leaders of opinion in the years shortly preceding the assembling of the Convention at Philadelphia, in May, 1787. But, in the view here presented, those efforts became, through the Annapolis assembly of 1786, only the occasion for calling the Constitutional Convention together; but the terms in which the instrument was expressed and the ends sought to be attained through it, resulted from a much deeper motive than the desire to improve the regulation of commerce— from the conviction of a governmental and social aristocracy, alarmed over the threatened breakdown of government and order in America, that a strong central authority was indispensable to the maintenance of order and civil peace, and to the protection of rights of property against the assaults of the multitude. In its origin, the Constitution of the United States is not a trade convention; it is the framework of a national government with strong coercive powers, formulated by the political, social, and financial leaders of the time, under the influence of great fear, for the purpose of protecting themselves and
their property. This determination of the dominant party in the Convention drew into its design all incidental powers bestowed upon the new government; and a correct view of the scope which the members intended to give to the several powers, including that over commerce, cannot be obtained without recognition of this dominant purpose. Had the trade convention at Annapolis succeeded, in 1786, amendments to the Articles of Confederation in certain particulars would have resulted, as in vesting greater powers over commerce in Congress, but the principle of the government would have remained the same. But from the failure of that assembly, the break-up of the Confederation, and the meeting of the Constitutional Convention at Philadelphia, there issued a new kind of government, framed for national as distinguished from confederated administration. This is, of course, not a new view of the origin of the Constitution. It was asserted in the discussions over the ratification of that instrument and in the Congressional debates in the early years of the Republic. It is also the view of Curtis and Bancroft; but these authors wrote in the interval between the settlement of the controversy over nullification and that recently arising about the affirmative exercise by Congress of powers long ago virtually attributed to it by the Supreme Court, but formerly unused; and there was no occasion for their dilating upon the conse