Our Changing Constitution
Shriver, Mark O.
487 OUR CHANGING CONSTITUTION By MARK O. SHRIVER THE trend toward federalization and democratization of the republic which began with the reconstruction period at the close of the war...
...America has come to the parting of the ways, and those who love her tradition and honor her history may well cry out with Horace: "O navis referent in mare te novi fluctus...
...For the first time the federal government was empowered to reach down into the very vitals of a sovereign state and establish restrictions on the regulation by it of the domestic concerns of its own citizens...
...Under the original plan congressmen were to be apportioned according to population and the numbers of the people, and were to be chosen by them...
...They insist on an amendment to the Constitution itself and so manifest a sad misunderstanding of our constitutional theory, a lack of knowledge of our history...
...White, an indissoluble union of indissoluble states, but that theory is well on the way to, if not long since cast upon, the smouldering ashheap of lost ideals...
...Until after 1866 there was never question of the power of Congress fully and perfectly to enforce any constitutional provision...
...The basic idea of what a constitution should be is lost, and with it has gone a just conception of the principles on which the government was founded...
...Of the Nineteenth (woman suffrage) it need be said only that, like the Fifteenth, it is an attempt to regulate suffrage within the states by federal act...
...In the beginnings of our history we were, as the Supreme Court declared in deciding Texas vs...
...The Supreme Court has defined a constitution as that rule and system of government delineated by the hand of the people by which the first principles of fundamental law are established...
...Hamilton, could he speak, would be as strict a constructionist as any one of us...
...The form and frame of government was set up and defined on broad general lines, and petty, unessential details were ignored...
...New York was as distinct from Massachusetts as England from France...
...Ominous shadows of distinct and dangerous federalization are over us...
...Turn back before the tempest overwhelms you...
...to repress and prevent extension of federal power and prerogative...
...And not only is power centralized and concentrated, but at the same time it is diverted from proper activities and directed to the rule and conduct of the every-day activities of the citizen...
...There was provision for many separate jurisdictions...
...The strength of the Constitution as it was originally drawn lay in a carefully conceived system of checks and balances...
...It would be bad enough if the effort were confined to the legislative field, but simple laws do not satisfy the demands of those who seek to lower the states to the plane of counties or departments...
...Those ten, in substance a part of the constitution of every state as well, are indeed universal law, and surely Congress would have been granted power to enforce them had modern theories prevailed in 1787...
...Who of the founders ever dreamed of such an extension of prerogative...
...There was provision for the three great departments, the legislative, the executive and the judicial...
...there was an amending clause and finally the proclamation of the Constitution and the laws made in pursuance thereof as the supreme law of the land...
...for the admission of new states and a guarantee of the republican form of government for all...
...These with the Fourteenth, the civil rights amendment, comprise the group of three that arose from conditions following the Civil War...
...Each of them is designed to further protect and safeguard the rights of the states and the citizens of the states...
...Senators, coming from the states which were all free sovereignties, were to be evenly allotted, two to each, as is proper in an assembly of equals, and they were to be chosen by the states in the only way a state can act, that is by and through the legislatures...
...It is a continuation of the unhappy process which is wiping out state lines, obliterating old sovereignties, stripping them of every vestige of power and authority and dignity...
...For the first time now is seen a declaration of such a thing as United States citizenship in connection with citizenship in the states, and 488 the provision that no state should abridge privileges or immunities of citizens of the several states...
...Education, childbirth, roads, and countless others are first aided and then dominated and controlled and regulated by that authority at the capital...
...The Thirteenth Amendment abolished slavery, and the Fifteenth, coming with it, enfranchised the newly liberated Negro so that for years the states where Negroes congregated were to all intents denied the right of self-government until by subterfuge and evasion other amendments had been circumvented...
...There were no changes of real or vital import until the close of the Civil War...
...Today the constitution makers are attempting to determine, not principles of organization only, but principles of administration as well...
...Like the Twelfth, it alters a method originally proposed and substitutes election of United States senators by direct vote for election by the state legislatures...
...for the interrelation of the states and their peoples...
...By constitutional amendment, by statute, and by judicial construction, the states are slowly, but none the less surely, being stripped of the powers reserved by the Tenth Amendment to themselves and to their people...
...Each was as distinct from the Union as one thing could be from another...
...Not one of all the amendments since the Twelfth but strips the states of one more power of sovereignty, reducing them still more in the civic scale until they reach the level of a conquered province, adding the while to federal dominion...
...In them is seen for the first time that clause of threat and menace: "Congress shall have power to enforce the provisions of this article by appropriate legislation...
...Simultaneously, almost, with the adoption of the parent document came the first ten amendments, the great federal Bill of Rights, all properly considered a part of one homogeneous plan...
...That might have been looked for in the Third Amendment forbidding the forcible quartering of troops in time of peace, or in the Fourth protecting citizens against unreasonable search—indeed in any of that first ten, but it will be sought for there in vain...
...This is not the place to express a view on the wisdom of prohibition, since for the present purpose, the importance of this amendment lies in the fact that by constitutional provision the national government reaches down into the homes to prescribe dietetic details for individuals in every one of the states...
...The break came with the so-called war amendments, designed to rivet defeat on the states which had seceded to establish the Confederacy...
...provision for each of the separate states and provision for the Union which, together, they were to establish...
...This was a long step in the gradual change that is turning our sturdy representative form into a stumbling, federalized democracy...
...The double sanction, however, means little since federal law is supreme law and the Supreme Court has said that, since Congress has once acted, while the states may indeed assent by enacting identical legislation, when the question turns on state enforcement of federal law, the states are without power...
...The Sixteenth (income tax) Amendment, a new grant of federal power, is yet only an extension of the taxing powers declared by the first article, but the Seventeenth manifests a mighty change in popular appreciation of the character and structure of the government...
...That phrase was coined and hurled as a vae victis and crammed into the war amendments because the growth of federalism demanded it...
...Each of them was to be supreme in the proper sphere, each was to have rights, privileges and immunities upon which the others might not impinge—which should not be infringed...
...There is constant effort to vest more and greater powers in the national government...
...487 OUR CHANGING CONSTITUTION By MARK O. SHRIVER THE trend toward federalization and democratization of the republic which began with the reconstruction period at the close of the war between the states, has steadily increased with the passing of the years, and we are now submerged by the tide...
...The phrase raised its ugly head again with the Eighteenth Amendment, this time in new and startling form, for not Congress only, but Congress and the several states, are given concurrent power to enforce...
...And, incidentally, Congress then received a power it dares not exercise today, the power to enforce by appropriate legislation the second section of the Fourteenth Amendment, limiting congressional representation where the right to vote is, in effect, if not in law, restricted or abridged save for participation in rebellion or other crime...
Vol. 5 • March 1927 • No. 18
