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came Chief Justice only two decisions on Constitutional law had been pronounced by the Court. During his thirty-four years of service fifty-one decisions were handed down. Bryce said, "His work of building up and working out the Constitution was accomplished not so much by the decisions he gave as by the judgment in which he expounded the principles of these decisions, judgments which for their philosophical breadth, the luminous exactness of their reasoning, and the fine political sense which pervades them, have never been surpassed and rarely equaled by the famous jurists of modern Europe, or of ancient Rome.”

The general common sense and clarifying opinions of Marshall and his associates and successors have determined a policy that makes possible legislation to meet our changing needs without disturbing the original form of the Constitution.

In this manner the unwritten Constitution has become largely the basis for our government with the framework of limited powers in the background to safeguard the fundamental principles of our democracy.

The meaning of the Constitution rests on judicial interpretation and the construction of law, although the obvious way of changing it is by amendment.

Laws passed by Congress, by state legislatures, acts of executive officers, consolidated public opinion voiced in law, are all subject to challenge as to constitutionality, and a test case finds its way into the Supreme Court.

The burden of proof in a "case" must come from those who assert the existence of a right. It is necessary to show the court where the Constitution grants an asserted right, either in an expressed power or in an implied power.

If nothing directly or indirectly confers it, the law is null and void. Unless the proposition is raised in the trial of the cause and its presentation to the court, a court is loath to raise the point itself in the first instance. It is also the custom of the court to pass the Constitutional question if the case may be disposed of by the decision of other questions. When forced to do so, however, the Supreme Court decides whether an asserted right is in harmony or conflicts with the Constitution.

Two basic principles have been laid down for liberal interpretation:

1. "Every power alleged to be vested in the National government or any organ thereof must be affirmatively shown to have been granted."

2. "When once the grant of power by the people to the National government has been established that power will be construed broadly."

When it has once been shown after due search of the Constitution that there is definite authority to grant a power it may be applied in a liberal way. For instance, the Constitution states that Congress has the power to regulate commerce. Under an early decision the Supreme Court ruled that Commerce included traffic, trade, navigation, communication, the transit of persons and the transmission

of messages indeed every species of commercial intercourse.

Guided by this ruling Congress passed the Interstate Commerce Law which has been frequently amended until it includes railway and steamship lines, express companies, telegraph, telephone and wireless transmission of messages, brought under control of the Interstate Commerce Commission which regulates rates and has the authority to regulate the business practices of those engaged in interstate commerce.

Congress has enacted other laws requiring safety devices on railroads, federal employers' liability, limiting the hours of continuous service for train crews, even creating a Railroad Labor Board to settle disputes with respect to wages of employees and working conditions.

This very clearly shows that when once power is granted the strictness of the initial step permits liberality in application.

Other nations are amazed at the ease with which public opinion is interpreted in the decisions of the Supreme Court. In 1803 public opinion sanctioned the purchase of Louisiana. President Jefferson felt uneasy about the constitutionality of his act when he negotiated and completed the purchase, although he acquiesced in Albert Gallatin's justification of it as an exercise of treaty-making power. Jefferson felt that every power should be specifically stated in the Constitution and desired an amendment to validate his act. Congress and the people as well

felt otherwise about it, and signified that approval of the legislatures were sufficient since Congress was authorized to "provide for the common defense and general welfare of the United States." Later this act rather than any specific provision in the Constitution served as a justification for our subsequent additions of territory.

In 1798 the people generally disapproved the Alien and Sedition Acts, and this disapproval has prevented any similar legislation.

We could enumerate other cases in which the importance of interpretation depends on what the majority regard as necessary to the general welfare of the people. On the courts then rests the responsibility of searching for the power that permits general public opinion to be voiced in the law.

We have seen that our government has frequently had to act in ways that do not seem warranted by a strict interpretation of the Constitution. In such cases the doctrine of implied powers has been used in justification.

In 1791 Alexander Hamilton urged his friends to charter a Bank of the United States to handle funds of the government. Congress had not been given the power to create a corporation; in fact the right to that particular power had been defeated in the Philadelphia Convention. Hamilton argued that the implied power was given under the "necessary and proper" clause. He maintained that "necessary" meant "suitable," thus starting a controversy which ended in the courts generally agreeing that the word

Implied

Powers.

"necessary" be interpreted as meaning "convenient." After some debate and delay Washington signed the bill making that particular phrase the true basis for the growth of the doctrine of implied powers.

Out of this doctrine has grown a perfect maze of interpretations and decisions extending to practically every clause and amendment. Consulting an annotated edition of the Constitution, you will be surprised at what has befallen the simple language of the Constitution as it has gone through the process of application to our growing needs.

Financial legislation involving various modes of taxation, creating a system of custom houses, revenue cutters, and tariff for protection of our industries have been the outgrowth of implied powers. Interstate commerce regulations, regulation of railroad rates, power to control immigration expected by the "makers" to be unrestricted, the control of navigation, construction of public works, and many rights not enumerated are regarded today as absolutely essential to the common good and general welfare of our citizens.

Court decisions which narrow the limits of state jurisdiction tend to widen the authority of the Federal Constitution, and the whole process of government becomes more complicated as the courts which have the responsibility of "liberal interpretation" grant powers demanded by the trend of the times.

The Constitution is so elastic that there is almost no limit to the extension of the powers of the

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