Our Changing ConstitutionPierson, Charles W. (Charles Wheeler)
History
Our Changing Constitution
Pierson, Charles W. (Charles Wheeler)
Constitutional history -- United States; United States -- Politics and government
Social welfare legislation presents a very different problem. Some of
the most dangerous assaults upon the Constitution to-day are being made
in that field. The leaven of socialistic ideas is working.
Representative government is becoming more paternalistic. Legislation
dealing with conduct and social and economic conditions is being
demanded by public sentiment in constantly increasing measure. Such
legislation for the most part affects state police power and lies
clearly outside the scope of the powers conferred by the Constitution on
the National Government. Moreover, "the insulated chambers afforded by
the several states" (to borrow a phrase of Justice Oliver Wendell
Holmes) are ideal fields for social experiment. If an experiment
succeed, other states will follow suit. If it prove disastrous, the
damage is localized. The nation as a whole remains unharmed. The
sponsors for such legislation, however, are seldom content to deal with
the states. Reform was ever impatient. The state method seems too slow,
and the difficulty of securing uniformity too formidable. Moreover, it
often happens that some states are indifferent to the reform proposed or
even actively hostile. Accordingly, recourse is had to Congress, and
Congress looks for a way to meet the popular demand. There being no
direct way, and public sentiment being insistent, Congressmen find
themselves under the painful necessity of circumventing the Constitution
they have sworn to uphold. The desired legislation is enacted under the
guise of an act to regulate commerce or raise revenue, and the task of
upholding the Constitution is passed to the Supreme Court.
Such subterfuges, far from arousing public condemnation, are praised by
the unthinking as far-sighted statesmanship. It is popular nowadays to
apply the term "forward-looking" to people who would make the National
Government an agency for social-welfare work, and to characterize as
"lacking in vision" anyone who interposes a constitutional principle in
the path of a social reform. Friends of progress sometimes forget that
the real forward-looking man is he who can see the pitfall ahead as well
as the rainbow; the man of true vision is one whose view of the stars is
steadied by keeping his feet firmly on the ground.
It cannot be reiterated too often that, under our political system,
legislation in the nature of police regulation (except in so far as it
affects commerce or foreign relations) is the province of the states,
not of the National Government. This is not merely sound constitutional
law; it is good sense as well. Regulations salutary for Scandinavian
immigrants of the northwest may not fit the Creoles of Louisiana. In the
long run the police power will be exercised most advantageously for all
concerned by local authority.
Public-domain text, read in full here on John Shaqi.
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