The American JudiciaryBaldwin, Simeon E. (Simeon Eben)
History
The American Judiciary
Baldwin, Simeon E. (Simeon Eben)
Courts -- United States; Law -- United States -- History
Carlyle said that the Roman republic was allowed so long a day
because on emergencies the constitution was suspended by a
dictatorship. The American republics have a right, upon this
theory, to a still longer one. With them the Constitution need
not be temporarily set aside on an emergency. It may simply be
permanently enlarged or limited by judicial construction. A
Constitution is the garment which a nation wears. Whether
written or unwritten, it must grow with its growth. As Mr. Bryce
has put it: "Human affairs being what they are, there must be a
loophole for expansion or extension in some part of every scheme
of government; and if the Constitution is Rigid, Flexibility must
be supplied from the minds of the Judges."[Footnote: "Studies in
History and Jurisprudence," 197.]
The Constitution of the United States declares that no State
shall pass any law impairing the obligation of contracts. This
proposition being the major premise, Chief Justice Marshall added
the minor premise that every charter of a private corporation is
a contract, and completed the syllogism by the conclusion that no
State can pass any law impairing the obligation of such charters.
The counsel who opposed this doctrine urged that every one must
acknowledge that neither the men who framed the Constitution nor
the people who adopted it ever thought that the word "contracts,"
as so used, embraced "charters." Be it so, was Marshall's
answer, that proves nothing unless you can go farther and satisfy
the court that if they had contemplated the construction we put
upon it they would have used words to exclude it.[Footnote:
Dartmouth College _v._ Woodward, 4 Wheaton's Reports, 518.]
The acquisition of foreign territory is a matter not especially
provided for in the Constitution of the United States. Jefferson
hesitated to make the Louisiana purchase on this account, and was
quite inclined to think, when he did make it, that he had
transcended the bounds of his authority. The courts gave the
Constitution a different interpretation, and stamped this upon it
as permanently as if it had been a birthmark. It was done by
Marshall in a single sentence. "The Constitution," he observed,
"confers absolutely on the government of the Union the powers of
making war and of making treaties: consequently that government
possesses the power of acquiring territory either by conquest or
by treaty."[Footnote: American Insurance Co. _v._ Canter, 1
Peters' Reports, 511, 542.]
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